UNITED STATES v. BISWELL
Legal provision: Amendment 4: Fourth Amendment
Argument of R. Kent Greenawalt
Chief Justice Warren E. Burger: We’ll hear first in No. 71-81, United States against Biswell.
Mr. Greenawalt you may proceed whenever you’re ready.
Mr. R. Kent Greenawalt: Mr. Chief Justice and may it please the Court.
This case is on review of the decision of the Court of Appeals for the Tenth Circuit that an agent of the Alcohol, Tobacco, and Firearms Division of the Treasury Department searched respondent Biswell’s business premises in violation of the Fourth Amendment.
The issue involved is a narrow one.
Whether Congress in regulating the distribution of firearms, may authorize treasury agents to make routine inspections during business hours of the business premises of licensed dealers in firearms and whether Congress may impost upon these licensed dealers a duty to admit the agents even though the agents do not possess a warrant.
Putting the question somewhat differently, thus the congressional authorization of such inspections and the imposition of a duty upon licensed dealers to admit the agents without warrants conflict with the Fourth Amendment.
We believe the constitutionality of the authorization and the duty Congress has imposed is plain under Colonnade Catering Corporation versus United States and that therefore the court below erred.
The relevant facts in this case are quite straight forward.
Loarn Anthony Biswell is a pawnbroker in Hobbs, New Mexico.
A substantial number of the items pawned with him as security for loans are firearms.
At the time of the inspection here he held some 444 firearms.
Biswell was a licensed dealer of firearms.
Under Section 923 of Title 18, dealers and firearms must be licensed and dealers who are explicitly defined to include pawnbrokers.
Special Investigator Hupp of the Alcohol, Tobacco and Firearms Division made a routine compliance visit to Biswell’s pawnshop.
According to Hupp, such visits of dealers are made about once a year.
Hupp identified himself and first inquired about Biswell’s records.
He ascertained that Biswell was not keeping records in the form required of all firearms dealers.
Hupp then indicated that he wish to see the storerooms where the firearms were kept.
Biswell kept these along with other pawned items in a locked storage room.
Biswell inquired if Hupp got a search warrant and Hupp said no but he showed Biswell a copy of the statute authorizing treasury agents to search the business premises of firearms dealers without warrants.
At that point, Biswell said, well, that’s what it says so I guess it is okay and he unlocked the storeroom.
Inside the storeroom, Hupp saw a rifle with an 11 and 3 quarter inch barrel.
Any rifle with a barrel of less than 16 inches is an illegal firearm under the National Firearms Act of 1968.
That Act does not absolutely forbid possession of such firearms but sharply constricts a rightful possession and commerce in such firearms.
Each set of firearm must have serial number, each dealer in such firearms must pay a special occupational tax and be specially registered with the Secretary of the Treasury and whenever any such firearm is transferred, the transferor must pay a $200.00 transfer tax and obtain approval of the Secretary of the Treasury.
It was clear to Agent Hupp that Biswell did not legally possess the sort of rifle he saw.
There was no required serial number on the rifle.
Biswell indicated that he had no idea such weapons had to be specially registered.
Finally, it was obvious that no owner would pay transfer tax of $200.00 to get a $3.00 loan although of course Hupp didn’t know the amount of the loan but he knew it was much less than $200.00 from a pawnbroker.
Soon after seeing this rifle, Hupp noticed another with a short barrel and he seize both rifles.
The District Judge denied a motion to suppress the two sort of rifles and they were introduced at Biswell’s trial.
They in the observations of them by Agent Hupp irrelevant to the count for which Biswell was convicted, engaging as a dealer on illegal firearms without having paid this special occupational tax.
Among other claims on appeal, Biswell asserted that the search leading to the seizure of the rifles was unconstitutional.
The Court of Appeals agreed that the search was unconstitutional and that the evidence should’ve been suppressed and it reversed the conviction.
I think it may be useful that the outset to put aside what is not involved in this case.
There is no assertion by Biswell that Hupp performed other than routine actions under the statute.
It is not disputed that he was engaged in the periodic compliance visit.
It is not disputed that such visits typically involved inspection of the firearms on the premises and if the entry into the storeroom was valid, the appropriateness of the seizure of the two clearly contraband weapons is not challenged.
At the same time it is clear that Biswell unlocked the door of the storeroom because he acquiesced in an apparent show of the lawful authority.
In an ordinary criminal investigation, his action would not of constituted consent to an otherwise unauthorize search.
Thus, we do not argue that this search was consented to in the ordinary sense of consent.
The case thus presents very clearly, the power of Congress to authorize treasury agents responsible for enforcement of the firearms laws to authorize those agents to inspect the business premises of firearms dealers without warrants.
Both the Criminal Code and the Internal Revenue Code contain a multiplicity of regulations governing the sale and distribution of firearms.
I take it there can be no question of the importance of close regulation of the gun industry.
Approximately 60% of the murders in the country by use of firearms as are 95% of the killings of police officers on duty.
The power of Congress to require licenses in registration and to tax this incidence of the gun industry has been consistently upheld.
That power is not questioned in this case.
As a central aspect of the regulatory scheme, Section 923 (g) of Title 18 provides for inspection.
The relevant language for this case is “The Secretary may enter during business hours the premises including places of storage of any firearms or ammunition dealer for the purpose of inspecting any firearms or ammunition kept or stored by such dealer at such premises.”
The clear import of this section is the treasury agents need not have a warrant to inspect and that licensed dealers have a duty under the statute to permit inspection.
This Section is virtually identical with the Section considered by this Court in Colonnade Catering Corporation versus United States.
In Colonnade, this Court held with three dissents that Congress had not authorized entry by physical force without a warrant.
The significance of that case for this one however, is in the Court’s reasoning.
The Court acknowledged that treasury agents have been given broad authority to enter and inspect the premises of liquor dealers and it determined that this authority is constitutional.
Both the majority and the dissenters agree that the rule of Camara versus Municipal Court and See versus City of Seattle was inapplicable to that case.
That rule of course is the one that requires a warrant for administrative search that has not been consented to but as I have said all justice, all of the justices agreed that that was --
Justice Thurgood Marshall: But there’s a little difference between a liquor and a gun?
Mr. R. Kent Greenawalt: There is Your Honor.
Justice Thurgood Marshall: Unless you can flush a gun down the toilet.
Mr. R. Kent Greenawalt: I believe, Your Honor, that for all relevant purposes, if that kind of search is -- or inspection is sustainable with respect to liquor industry it should be sustainable with respect to regulation of the gun industry.
Unknown Speaker: Historically, historically, certainly my Brother Marshall is correct that the government regulation of this production sale and distribution of alcoholic spirits has been pervasive in almost the beginnings and through the history of the Eighteenth Amendment, the Twenty-first Amendment but it -- long before that.
By contrast with firearms which have not been regulated until the very rule, the recent day, isn’t that correct?
It can either by to the states or the nation?
You know the --
Mr. R. Kent Greenawalt: Yes, that is essentially correct.
Unknown Speaker: And indeed you have a constitutional amendment, one of the Bills Of Rights relating to firearms which runs the other way.
Mr. R. Kent Greenawalt: Well, I do not think it runs the other day because that Amendment is not been interpreted before [Voice Overlap].
Unknown Speaker: I know it has but there’s nothing comparable with respect to alcoholic spirits.
Mr. R. Kent Greenawalt: That’s right.
It certainly is true that the history of a close regulation of the liquor industry is a much older one than close regulation of the gun industry.
Unknown Speaker: It’s been pervasive throughout our heads.
Mr. R. Kent Greenawalt: Has been pervasive.
There were --
Unknown Speaker: Taxes, regulations, everything else by contrast with firearms?
Mr. R. Kent Greenawalt: Yes, Your Honor.
There were old statutes before the constitution was adopted that prohibited concealed weapons and state regulation of the gun industry has proceeded in this century and there were federal laws on the book as early as 1934.
So when you say recent, it isn’t the last few years but it certainly is.
It isn’t the long history to the end.
The history isn’t of that such close regulation as existed with respect to liquor industry.
It is our contention however that reasonableness under the Fourth Amendment in this context in determining what kinds of inspection require warrants has to be determined with the view toward an evolving society and the needs of the society at this time and we do not see how it can be said that despite the greater history of regulation of the liquor industry that the need for inspection is greater in regard to liquor than it is with respect to lethal weapons and so are -- and I think that’s borne out by the findings of Congress in passing the most recent legislation in 1968.
Chief Justice Warren E. Burger: Mr. Greenawalt, what’s in your review -- what protection in your view does the constitutional right to bear arms reached and protect a dealer in arms?
Mr. R. Kent Greenawalt: As I understand the way the Court has interpreted, that constitutional protection.
It essentially relates to the state’s militia and I would think that it does not foreclose close regulation of dealers in firearms anymore than it forecloses the forbidding of the carrying of certain or possessing a certain kinds of firearm.
So essentially it is our contention that it has no relevance.
Justice William H. Rehnquist: Mr. Greenawalt, supposing these were the securities industry which I take it was not regulated at all in 1789 but as of 30 to 40 years ago is now very heavily regulated.
Would you feel administrative search of this type could be justified of a security’s dealer justice as well of a gun dealer?
Mr. R. Kent Greenawalt: Mr. Justice Rehnquist, we think that you have look at each area to see whether the test of Camara should apply to the test of Colonnade.
We do not think the fact that there is not a long history dating back to the time of the constitution of inspections without warrants is determinative but it might well be that the securities industry would be different from the gun industry.
Justice William H. Rehnquist: But why?
Mr. R. Kent Greenawalt: Well, I think the -- well, maybe it would be useful if I say why I think the gun industry like the liquor industry is appropriately subject to this kind of inspection.
First of all, unlike the ordinary homeowner or the person who had business premises in a sea, this is not a citizen who is just subject to searches that happen to every homeowner or every owner of a business office.
This is someone who’s licensed in a particular industry and a very closely regulated industry who knows who the authorities are that have power to inspect, what agency it is that’s regulating the gun industry.
So that -- first of all, when an agent of the Alcohol, Tobacco and Firearms unit shows up at his premises he is virtually certain that there is proper authority in that officer to inspect assuming that there isn’t a problem I think that there was in Camara or in See that somebody might show up in the -- the homeowner or the warehouse owner wouldn’t know whether this fellow really had the power to make a search.
Secondly and I supposed this is quite crucial, this is not like an ordinary administrative inspection.
If there is a fire hazard, faulty wiring or defective elevator and the inspector shows up and says I want to check your wiring, I want to look at your elevators, if entry is refused it’s unlikely that the condition is going to be corrected within three or four hours or however long it would take to get a warrant.
If the condition is corrected, the substantial purpose of the administrative regulation is achieved since the substantial purposes to correct the wiring or to get the elevator on proper working order and that just isn’t true here in respect to these inspections.
When the inspector shows up, if he has to go for a couple of hours to get a warrant, a gun dealer can just put aside whatever weapons may be illegal.
The inspector comes back with his warrant, he makes the inspection.
He doesn’t find the guns and then the gun dealer puts the weapons back in their place, I mean the entire purpose of the inspection would be forwarded.
Now, well, I think I‘ll stop there.
Chief Justice Warren E. Burger: Is this statute somewhat analogous to the provisions of the National Banking Act that authorize bank examiners to spoof in a bank and without any notice or without any warrant to examine the books and count the money in the cash door and securities in the safe?
Mr. R. Kent Greenawalt: It is essentially similar to that, yes.
Chief Justice Warren E. Burger: Has that ever been -- is the right of the bank examiner ever been challenged in any federal case that you’re aware of?
I know of none in this Court ever been challenged to --
Mr. R. Kent Greenawalt: Not so far as I am aware, Your Honor.
There are a great many statutes of this kind and I did inquire about some of them.
For instance, the Federal Aviation Agency has the power to inspect airports and so on and I gather that in most instances, in those activities that there’s fairly close cooperation and the desire not to upset the Federal agency that is governing until the searches are consented to as a matter of course.
That seems to be the typical experience.
Unknown Speaker: Mr. Greenawalt, factually there was reference and you made it to the fact that this man said, well if that’s the law then of course come in.
In the licensing process itself when one obtains the license of this kind is he given a copy of the statute?
Mr. R. Kent Greenawalt: I -- yes, I believe so copies -- that surely appeared in the record that copies of the statute were mailed to Biswell and that Agent Hupp saw on his desk or at some point that there was a warrant to seize the rest of the rifles the next day and he returned to the pawnshop at that point.
I think at that point, he saw a copy of the regulations that certainly Biswell have been notified of the content of the statute and had received the regulations indicating both what the substantive regulations were and the power of the agents of the division to search his premises, inspect his premises.
Unknown Speaker: So it’s your position there wasn’t any surprise on his part with the statute?
Mr. R. Kent Greenawalt: He did make a claim at trial that he subjectively was surprised that these weapons were outlawed but they have been outlawed since 1934 and in fact, although we believe that it was not necessary under Free versus United States, the District Judge gave a rather favorable instruction which I think the juror would not have –- under which I think a juror would not have convicted unless he believed that Biswell did know that these firearms were illegal firearms under the National Firearms Act.
Unknown Speaker: Mr. Greenawalt, if Biswell had refused entry to the locked vault what - then would -- have been the position?
Mr. R. Kent Greenawalt: Well, we think the clear implication of Colonnade is that if the liquor dealer had refused entry, he could appropriately be punished.
In fact, in the opinion says whether the imposition of a fine for refusal to permit entry is under the statutory scheme, the exclusive sanction absent to warrant to break and enter.
Unknown Speaker: Yes, (Voice Overlap) but in a different offense than the one that which he was convicted here?
Mr. R. Kent Greenawalt: That’s correct.
We -- yes, we believe that the -- there is general line --
Unknown Speaker: And Hupp could not have been broken it?
Mr. R. Kent Greenawalt: That’s correct.
And under Colonnade --
Unknown Speaker: If he had broken in and seized then Colonnade would have made it illegal.
Mr. R. Kent Greenawalt: Absolutely, yes.
Unknown Speaker: But you do rely on, if that is the law, I guess it’s alright.
Mr. R. Kent Greenawalt: Well, we rely on that and that --
Unknown Speaker: As what?
Mr. R. Kent Greenawalt: Not as consent in the ordinary sense.
Now I say in the ordinary sense because there is a qualification that I’d like to make.
Unknown Speaker: Well, I know that Mr. Justice Clark’s opinion below says that the government argued in that Court the appellant consented.
You’re not making that argument here?
Mr. R. Kent Greenawalt: I am certainly not making the argument that this is consented in the ordinary Fourth Amendment sense.
It is arguable that it is either consent in the sense that he got a license knowing what the regulatory scheme was and since it was reasonable, he sort of undertook this kind of obligation.
There is that argument and there’s also an argument that can be drawn from the opinion in Davis versus United States which suggest that the standard of consent may be different if there is a duty to admit someone or in that case it was public property rationing stamps that were involved.
Unknown Speaker: Well, Mr. Greenawalt, it is consent in the sense that it served to negative the use of force.
Mr. R. Kent Greenawalt: That’s correct.
It was in acquiescence in lawful authority.
Unknown Speaker: And that’s the -- the what -- that that’s -- what gets you around Colonnade?
Mr. R. Kent Greenawalt: Absolutely.
Unknown Speaker: I mean if he hadn’t have acquiesced, you would’ve been having some problem?
Mr. R. Kent Greenawalt: Absolutely.
Unknown Speaker: So it is a critical point?
Mr. R. Kent Greenawalt: It’s a critical point, the fact that he unlocked the warehouse itself.
Unknown Speaker: What do you do with Justice Clark’s disposition of it on Bumper?
Mr. R. Kent Greenawalt: Well, we just think Bumper is not applicable.
Bumper is an ordinary Fourth Amendment case, the kind of consent that’s involved.
There is a free voluntary agreement to do something that you are not legally required to do.
I think, I mean this is the key point in the case. Can Congress legally require the licensed firearm dealer to open up his storage room?
If it can legally require it then that eliminates the problem with physical entry that was post in Colonnade.
And if he --
Unknown Speaker: Well, you’re saying can Congress give the dealer a choice between going to jail and letting people in.
Mr. R. Kent Greenawalt: That’s correct.
Unknown Speaker: I mean, you say to him either you let us in or you will go to jail?
But you have your choice you can go to jail if you don’t want to let us in and we can’t break it.
Mr. R. Kent Greenawalt: That’s why we argued that it’s not consent in the ordinary sense.
But again I return to Mr. Justice Douglas’ opinion in Colonnade.
It was assumed in that case that he could be punished for refusing to open the storeroom that was --
Unknown Speaker: But we could also assume in that case if Congress could even authorize the agent to break-in?
Mr. R. Kent Greenawalt: No, it was assumed that it couldn’t -- well, as far as it could, I would say yes that the implication of the opinion is that Congress could but that of course is not involved here. We don’t argue that Congress has done that.
Assuming that --
Unknown Speaker: Is it clear to you that --
If he’d said yes I read the law here that you are showing me but I am not going to let you in that he would’ve been guilty of a criminal violation then and there?
Mr. R. Kent Greenawalt: Yes, I think one could make an argument on the other side but I -- we -- that is our position, the 924.
You don’t have the kind of specific language that you had in Colonnade about refusal to enter but 924 does make it a crime to violate any provision of this chapter.
Now, we believe that the inspection provision gives a clear right to the agent to enter and therefore if that entry is refused then that’s a violation of (Voice Overlap).
Justice Potter Stewart: It doesn’t explicitly at least in Hiberger (ph) impose an obligation.
(Voide Overlap) it just says internal revenue officers may enter.
It doesn’t say all licensees must permit agents to enter.
Mr. R. Kent Greenawalt: That’s correct Mr. Justice Stewart, it is.
Justice Potter Stewart: And there is a difference, maybe?
Mr. R. Kent Greenawalt: Well, you do not have the specific language that you have in Colonnade but we think that that really is surplusage that the clear implication of that provision is that the agents have authority to enter and that therefore the dealer has the duty to allow them to enter.
Even if we were wrong about that in terms of whether it’s criminally punishable whether 924 spells out the criminal sanction with such clarity that a refusal to allow entry would be a criminal violation.
We still think it’s clear that the import of the statute is that under the statute, dealers are supposed to allow entry and so then we view that by saying that you have a duty which might result in loss of license, might not result in criminal sanctions but nevertheless a duty illegally imposed by Congress so that once you do allow the entry that’s an acquiescence and a lawful duty imposed by Congress and that makes the inspection proper and that the fruits of the inspection therefore admissible in evidence in the criminal trial.
Justice Potter Stewart: It is not therefore a necessary part of your argument at all that his refusal to permit entry would be a criminal offense under the statute?
Mr. R. Kent Greenawalt: No, I would say it is a necessary part of our argument that he have a duty that he --
Justice Potter Stewart: Well, that Congress authorized the agents to enter.
Mr. R. Kent Greenawalt: And that the implication is that you are not supposed to keep the store room locked if the agents want to enter, yes.
Justice Potter Stewart: Right.
Mr. R. Kent Greenawalt: That is necessary.
But the criminal sanction is not.
Well, I deal briefly with the point that is raised in the amicus brief by Civil Liberties Union if the inspection was lawful we think it is clear that the evidence is admissible in a criminal trial.
Again, going back to Colonnade, that evidence presumably would have been admissible in a criminal trial.
The evidence was suppressed in that case.
There were criminal sanctions as they are here for the violation of the regulations in Colonnade as well as here and this Court has always assumed that contraband found in the course of a lawful inspection can properly be introduced in evidence.
In short, in summary, it is our position that Colonnade dictates reversal of the decision below unless the major reasoning of that opinion is to be repudiated or the gun industry regulation of the gun industry is to be distinguished from regulation of the liquor industry and we urge very strongly that in light of present social conditions, it must be that Congress has as much power over the gun industry in these terms as it does over the liquor industry.
I would like to reserve the remainder of my time for rebuttal.
Chief Justice Warren E. Burger: Very well.
Argument of Warren F. Reynolds
Mr. Warren F. Reynolds: Mr. Chief Justice and if it please the Court.
Our position is far as issue one is concerned in the petition brief is that not only does the gun inspection statute violate the Fifth Amendment rights of the respondent, I mean the Fourth Amendment, it also violates the Fifth.
That by forcing upon him the obligation to allow inspection he thereby incriminates himself of any criminal acts are discovered.
At the outset, I would like to point out to the Court that this came up, I don’t believe that it was relevant to the argument before the Court but I would like to point out that Mr. Biswell was found innocent for possession charges of the guns and found guilty of not being licensed.
So query, what did the jury believe?
I believe we are all confused about that outcome.
But getting to the constitutional question, actually what the petitioner is advocating here is the same thing that Franks did which this Court overruled later that is create an additional exception to general rule under the constitution that there must be a search warrant with probable cause before you can search not only private homes but the private portions of the premises of businessmen.
And in Frank as the Court recalls the Court in that case said well, if this is an administrative search which is essentially civil in nature, no criminal investigation that there are safeguards then we will allow such a search and call it to be constitutional.
The -- this Court in the Colonnade case which See followed as far as commercial premises are concerned indicated otherwise.
At the outset I would like to point out that it is the respondent’s feeling that there is a much greater issue facing this Court today other than just the gun statute which is a subject to this case.
As the petitioner cited in his brief, in his footnotes, there are some dozen pieces of federal legislation existing today which call for inspection of premises of businessmen all the way from poultry, drugs onto to a new act which we have now the National Safety and Health Practices Act.
Now, prior to the enactment of this Act most of these acts where a specialized area of business and probably didn’t step on the toes of these many people as this new Act will.
This Act covers all employers whose businesses are engaged in commerce and it contains penalties of up to $20,000.00 in one year for violations.
So I think that --
Unknown Speaker: What’s this new Act, directed to pollution?
Mr. Warren F. Reynolds: This is the Safety and Health Practices Act Mr. Justice.
It’s pointed at unsafe practices on business premises that are injuring employees and they have an inspection provision in there.
No call for search warrant and they have very heavy penalties.
Unknown Speaker: Is that in your brief?
That -- the reference to that statute?
Mr. Warren F. Reynolds: The reference to statute is in the petitioner’s brief, Your Honor.
Unknown Speaker: What do you mean, it’s a safe place to work concept?
Mr. Warren F. Reynolds: Yes.
Yes, it is Your Honor.
Unknown Speaker: And that is if there are defects unrepaired, broken stairways and things like that?
Mr. Warren F. Reynolds: I think it goes to machinery, almost any type of unsafe practice.
And the statute calls for inspections, in fact it calls for surprise inspections.
It’s a similar nature to your banking statute but it has far reaching effects and I think –-
Chief Justice Warren E. Burger: Are we to take it that what you’re suggesting is that all of those statutes like the present one before the Court violate the Fourth or the Fifth Amendment or both?
Mr. Warren F. Reynolds: If it please the Court, I think they violate both Amendments.
First they violate the Fourth Amendment because they evade the privacy right that we have under the Fourth and we also invade our self protection right but not only that they also invade the Fifth Amendment whereby we’re guarantee right not to be self-incriminated and the large --
Unknown Speaker: What is their testimonial about finding improper doing?
Mr. Warren F. Reynolds: If it please the Court.
Its evidence against a licensee in this situation and if according to --
Unknown Speaker: Of course the guns are evidence against him?
Mr. Warren F. Reynolds: Yes.
Unknown Speaker: But how do you get to put, how does that become testimonial?
That’s what we do with distinction in Schmerber in that line of cases between testimonial and non-testimonial?
Mr. Warren F. Reynolds: I’ll please the Court.
I know this Court overruled Franks but Franks did indicate that there was also the Fifth Amendment danger in this sort of situation in that if I -- as a condition of a license have a duty to inspect which the Government contends then I in essence have submitted myself to the Government obtaining evidence against me which will be incriminating.
This is what the Government is arguing.
That actually there’s an implied consent here to the search.
And that as a requirement of the license is the -- in the giving of a privilege the Government requires that I give up my Fourth and Fifth Amendment rights.
Unknown Speaker: Well, I don’t understand this.
We’ve said that handwriting, exemplars fingerprints.
Things of that nature are not testimonial and therefore not involved with the privilege against self-incrimination.
Now, I don’t quite understand how this is?
Mr. Warren F. Reynolds: Well, I think it’s a broad proposition, Your Honor.
Unknown Speaker: You’re relying I gather on Mr. Justice Black’s view that he expressed in Mapp against Ohio and without his view, Mapp against Ohio could not and would have been decided the way it was.
Mr. Warren F. Reynolds: And I think the Court recognize it Franks where they indicated that they recognize the fact that in almost all of the search and seizures, it were condemned under the Fourth Amendment.
They’re also condemnable under the Fifth Amendment in enforcing a man to have his premises searched without consent so that he’ll be incriminated.
Unknown Speaker: So you’re saying every illegal search is a violation of the Fifth Amendment law of the Court?
Mr. Warren F. Reynolds: I believe it is, Your Honor.
I think it is more applicable to be pointed out in this case.
Unknown Speaker: If at least, if it turns up something that tends to prove a criminal violation by the owner of the premises that is introduced against him?
Mr. Warren F. Reynolds: Yes and it’s introduced against them.
Justice Thurgood Marshall: Does that apply to all the liquor laws?
Mr. Warren F. Reynolds: I think it would, Your Honor and --
Justice Thurgood Marshall: Do you have the outsets in three -- all cases?
Mr. Warren F. Reynolds: I realize that but I think that the safeguards.
I mean, this is my feeling there is no specific language but I believe the safeguards that were spoken of in Colonnade were more broad than just the mere procedure that an inspector went through.
I think the safeguards and the only safeguard that any person in this position who is a licensee and whose premises must be inspected and if the courts fail that it’s in the public interest they must be inspected then there should be a provision in that act that any infractions found of a criminal nature would not be use as evidence against the many criminal proceeding.
This would be similar to the Haynes, the legislation that arose out of the Haynes decision.
The Haynes decisions in 1968, the Congress and the Federal Farms Act enacted a statute specifically to overcome the effect in that case.
Justice Thurgood Marshall: Well, your point is, whether or not they can be licensed.
Is that your point?
Mr. Warren F. Reynolds: I beg your pardon?
Justice Thurgood Marshall: Whether or not they can be required to have a license.
Mr. Warren F. Reynolds: No, I am not disputing the fact that the requirement to have a license is unconstitutional.
Justice Thurgood Marshall: Well, what would be the purpose of the license?
Mr. Warren F. Reynolds: The purpose of the license would be to insure compliance with the act and ensure that a proper --
Justice Thurgood Marshall: Well, how could that be found out without inspection?
Mr. Warren F. Reynolds: Oh!
I -- what I am -- what I have not -- I am not saying per se inspection should not be in the statutes.
What I am saying is that on a case by case basis, this Court and the lower courts look at the situation that if the public interest is not deterred by requiring a search warrant then let’s protect the privacy interest of the businessmen.
These statutes are rapidly encroaching upon all areas of our life and on the other hand if that is in Colonnade and if the Government is correct --
Justice Thurgood Marshall: Well, in the Colonnade they had found poisoned whisky.
It’s your position that there’s nothing the Government could do?
Mr. Warren F. Reynolds: My suggestion is that they should have gotten a search warrant in that case, Your Honor.
Justice Thurgood Marshall: But it is -- well, suppose the poisoned whisky is sitting on the counter outside?
Mr. Warren F. Reynolds: On the counter outside, well, I think there’s been a decision that if it’s in a public area then certainly it can be inspected.
Justice Thurgood Marshall: Which is the same in this case?
Mr. Warren F. Reynolds: Well, this wasn’t a public area.
Justice Thurgood Marshall: That’s what I’m saying.
Mr. Warren F. Reynolds: Yes.
Justice Thurgood Marshall: But there’s no objection to that.
But not if they go into back them and they find poisoned whisky, they can’t use it?
Mr. Warren F. Reynolds: Not unless they have a search warrant.
Justice Thurgood Marshall: I’d think -- and by the time they got to the door to get ready to go to get the search warrant, where would of course the whisky be?
Mr. Warren F. Reynolds: Well, I believe that we’ve had several cases outside into my brief that said this; no problem is one of the options hanging around keeping them from disposing this.
Justice Thurgood Marshall: But I’d -- the only purpose was you don’t oppose the licensee.
You are not opposed to that?
Mr. Warren F. Reynolds: No, I’m not opposed to the licensee.
I am not opposed to the inspection.
Justice Thurgood Marshall: You’re not opposed to being licensed on the statute which says you shall let them in?
Mr. Warren F. Reynolds: I am opposed to inspections into -- in the alternative.
Number one --
Justice Thurgood Marshall: Well, I thought you said you didn’t mind the inspections so long as they didn’t use it.
Mr. Warren F. Reynolds: So long as they –- well, number one, I think we have to first look at the area of the businessman’s privacy.
Now I think on a case by case basis the Court should balance the interest of the privacy guarantee under the Fourth Amendment.
Justice Thurgood Marshall: There are number of reports that the businessman has to file with the Federal and State Government, how much privacy does he got left?
Mr. Warren F. Reynolds: He doesn’t have much, Your Honor.
But what I’m trying to say is that actually, there has to be a balance on a case by case basis, the privacy of businessman versus the interest to the public for the particular Act to be implemented.
Now if this Court sees fit to say that the interest of the public is greater than the Fourth Amendment interest of privacy, then at that point it is our position that anything discovered during such an inspection should not be used in a criminal prosecution against them.
Revoke his license, put him out of the business but let’s not force him as a privilege of doing business be subject to criminal persecution.
This is what happened in -- as a parallel like I said in Haynes cases.
This is what happened with subsequent legislation.
They said from now on you still have to register guns but we aren’t going to use that evidence against you in a criminal prosecution.
And there’s no reason why we can’t do that in these inspections statutes.
We still accomplish the purpose.
We see that there’s no illegal activity.
We are able to trace guns to clear up criminal activity.
On the other hand, we don’t take away this man’s constitutional rights as a privilege of doing business and this Court has condemned that in other cases.
On the other hand, if he doesn’t fulfill his obligations as a gun dealer, let’s take his license away from him.
But let’s not throw him in jail because we have granted him a privilege and in turn took away his constitutional rights.
This could be done in lots of areas.
Chief Justice Warren E. Burger: Well, wouldn’t you make this same argument if this had been a proceeding to cancel his license on the basis of the search that was made?
Mr. Warren F. Reynolds: I probably would, Your Honor but I don’t think it would be a strong -- [Laughter].
There we’re dealing with a civil right.
Here we’re dealing with criminal prosecution.
We’re dealing with sentences up to five years in jail, incidentally he received a two-year sentence.
Justice William H. Rehnquist: Mr. Reynolds, it seems to be a fair implication from the court’s opinion on the Colonnade case that if your client had been in the liquor business and that same had happened that the search would have been permissible.
Do you disagree with that as a statement of the holding or the -- at least the dictum in Colonnades?
Mr. Warren F. Reynolds: If it please the Court.
There seems to be two areas of dicta in that case.
On the one hand, the Court seems to attempt to distinguish Colonnade from See and the other case.
But on the other hand, the Court did make a broad statement that there were not reasonable safeguards in the statute and that as a consequence they were going to hold that the Fourth Amendment have to apply.
Then they went on and stated that the Congress did not authorize a remedy of forcible entry when consent was refused merely a criminal penalty.
But I think that the issue was really narrow in Colonnade and I think there is enough dicta there to there indicate that this Court would look at it on a case by case basis.
Justice William H. Rehnquist: When you say that, you mean the liquor industry being one case and the gun industry being another?
Mr. Warren F. Reynolds: Yes, but I don’t think the Court even went this far to say that even in the Colonnade case.
I don’t think it went as far to say that the Government has an absolute right to inspect but you can’t bust in the door.
They did talk about safeguards in here.
They didn’t tell us what safeguards.
But they did talk about them.
And they said they were no safeguards and this certainly isn’t contradictory to Camara and See.
Chief Justice Warren E. Burger: Don’t you read Colonnade as permitting an examination in an inventory of every bottle of liquor that was in sight of the agent in the Colonnade case?
Mr. Warren F. Reynolds: I don’t read it quite that narrow, Your Honor.
I think it’s a broader holding, it’s unfortunate that it was a forced entry.
Maybe we would have a clearer decision today.
But I think that this Court should look at Camara and See and go over the factors that went over we’re gone over by this Court in that case and determine this case on a case by case basis.
Chief Justice Warren E. Burger: Thank you Mr. Reynolds.
Do you have anything further Mr. Greenawalt?
Rebuttal of R. Kent Greenawalt
Mr. R. Kent Greenawalt: Just very briefly, Your Honor.
Mr. Chief Justice, we don’t expect the Court or ask the Court in this case to uphold the inspection provisions of every federal statute that provides for inspection without a warrant.
We do think that there may be differences and their differences in the practices now, for instance, I am told that in regard during inspections of food, that there’s never been any problem because they would simply stop inspecting the food if the inspections weren’t permitted and then I suppose the food will be harder to sell.
The FDA has informs people that they have a right not to consent to a search without a warrant and goes out and gets warrants.
It’s acting in accord with the holding of Camara and See, and the considerations there may be quite different and they are in the gun industry.
Unknown Speaker: What the -- do you have the citations of the statute which probably mentions the more recent statute, the more general one?
Is that in the briefs anywhere?
Mr. R. Kent Greenawalt: I’m not sure.
Unknown Speaker: You said it was in your brief and in Roman 3 of your brief, two and three they’re all -- three or four dozens, that’s a choice I take, which is it?
Mr. R. Kent Greenawalt: I’m not -- Its footnote 5 on page 10 but I am not sure precisely which statute he’s referring to.
Unknown Speaker: This one purportedly authorizes -- excuse me.
As long as the citation is there, I take is somewhat (Inaudible).
Justice Potter Stewart: It will be helpful to get it.
Mr. R. Kent Greenawalt: It seems to be Title 29, Section 657.
I am not sure whether that is in this footnote or not.
Unknown Speaker: 29 - 657 that is one that purports to authorize inspection of any employer engaged in commerce.
Mr. R. Kent Greenawalt: I am not sure whether that’s an accurate statement of the statute.
In any event, we think that the relevant factors are whether somebody has knowingly undertaken an obligation as a licensee, the reasonableness of the regulation whether there’s a narrow and falsely regulated industry so that the authority of the inspector is known and the person knows the area to be inspected, how great the invasion of privacy is here -- reached on the business premises and whether there is a need for surprise as there are -- as there is this case.
Justice Thurgood Marshall: Did he on notice that if an inspection is made which comes out as a search that the material found can be used against him.
He hasn’t consented to that, has he?
Mr. R. Kent Greenawalt: I think Mr. Justice Marshall he is effectively on notice of that and I presume that is why he was hesitant to consent to the inspection in this case.
He certainly must have feared that.
Justice Thurgood Marshall: You know the -- you said they already consent it was because he assumed he’s dead but there’s nothing in that statute that said this information can be used against him?
Mr. R. Kent Greenawalt: There’s nothing.
There’s not a specific language to that effect.
Justice Thurgood Marshall: There is no language.
Well, show me any language to that effect.
Mr. R. Kent Greenawalt: The only line -- there is no language to that effect but there are very substantial criminal penalties for a variety of acts and there is a provision that the Secretary can enter the premises during business hours to inspect.
Now, I would think that an ordinary, reasonable businessman would know that if criminal violation is found during an inspection he is in serious trouble and maybe prosecutor and that the agent, he is going to testify as to what he found in the inspection and is going to produce any contraband that was seized at that point.
Unknown Speaker: Mr. Greenawalt, if these guns were inadmissible in evidence in the criminal prosecution under our cases, would it also follow if they could not have been seized at that time?
Mr. R. Kent Greenawalt: Well, I would move it backwards and say if they can be seized, they can be introduced in a criminal prosecution.
Yes, it would be noble rule to say that the contraband which is properly seized cannot be introduced in the prosecution.
Unknown Speaker: What if it were held that they couldn’t be introduced in a criminal prosecution but you nevertheless permit their seizure?
Mr. R. Kent Greenawalt: Well the ACLU accepts that rule in its amicus brief.
It says you can seize them because they are contraband but because of the self protection and of course you can’t admit them in a criminal prosecution.
That as far as I know is without support of any opinion that’s been written on the Court in the majority or in the dissent.
Unknown Speaker: And how about if you couldn’t seize them either, could you use the -- could you use what you saw as a basis for revoking a license?
Mr. R. Kent Greenawalt: Well, I would think you’d run into the same problem there.
Why should you be able to use it to revoke a license if you can’t use it in a criminal prosecution?
So again I would think the logic of the court’s Fourth Amendment rulings is that if –-
Unknown Speaker: You don’t think really you could distinguish between permitting a search for the purpose of enforcing the obligations of a licensee and yet not permitting the evidence to be used in a criminal prosecution.
Mr. R. Kent Greenawalt: Well, first of all that would be inconsistent with anything this Court has ever said about the Fourth Amendment.
And there are -- the Zap case which is cited in our brief is an example of inspection without a warrant.
They are consented to by contract and in which it was introduced in the criminal trial and that’s been the assumption of every holding.
Practically, the result of the rule, that kind of rule in this area would be to require the Government to get warrants, I think it would -- since these are very serious violations of the criminal law in most of the weapons that are forbidden under the National Firearms Act for the things like machine guns and bombs and hand grenade.
In addition, the sort of rifles and shot guns and if the Government upon finding that could not be used as evidence in a criminal trial, it would certainly defeat the purpose of the inspection.
I might -- just one point in answer to Mr. Justice Marshall’s point that Colonnade statute did not contain any language of the client that you suggested either and so I again would say this case is governed by Colonnade on that.
Chief Justice Warren E. Burger: Thank you Mr. Greenawalt.
Thank you, Mr. Reynolds.
The case is submitted.