United States v. Biswell/Dissent Douglas

[p317] MR. JUSTICE DOUGLAS, dissenting.

As Mr. Justice Clark, writing for the three-judge panel in the Court of Appeals for the Tenth Circuit said, the Federal Gun Control Act, 18 U.S.C. § 923 (g), has a provision for inspection that is "almost identical" with the one in Colonnade Catering Corp. v. United States, 397 U.S. 72.

The present one provides:

"'The Secretary may enter during business hours the premises (including places of storage) of any firearms or ammunition... dealer... for the purpose of inspecting or examining (1) any records or documents required to be kept... and (2) any firearms or ammunition kept or stored by such... dealer....' 18 U.S.C. § 923 (g)."

[p318] The one in Colonnade provided:

"'The Secretary or his delegate may enter during business hours the premises... of any dealer for the purpose of inspecting or examining any records or other documents required to be kept... under this chapter....' 26 U.S.C. § 5146 (b)."

The Court legitimates this inspection scheme because of its belief that, had respondent been a dealer in liquor instead of firearms, such a search as was here undertaken would have been valid under the principles of Colonnade. I respectfully disagree. Colonnade, of course, rested heavily on the unique historical origins of governmental regulation of liquor. And the Court admits that similar regulation of the firearms traffic "is not as deeply rooted in history as is governmental control of the liquor industry." Yet, assuming, arguendo, that the firearms industry is as appropriate a subject of pervasive governmental inspection as is the liquor industry, the Court errs.

In Colonnade, we agreed that "Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand." 397 U.S., at 76. But we also said:

"'Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.' Id., at 77."

Here, the statute authorizing inspection is virtually identical to the one we considered in Colonnade. The conclusion necessarily follows that Congress, as in Colonnade, has here "selected a standard that does not include forcible entries without a warrant." Ibid.

In my view, a search conducted over the objection of the owner of the premises sought to be search is "forcible," whether or not violent means are used to effect [p319] the search. In this case, the owner withdrew his objection upon being shown a copy of the statute authorizing inspection, saying: "If that is the law, I guess it is all right." If we apply the test of "consent" that we used in Bumper v. North Carolina, 391 U.S. 543, we would affirm this judgment, for as MR. JUSTICE STEWART, speaking for the Court in Bumper, said:

"When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

"When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion–albeit colorably lawful coercion. Where there is coercion there cannot be consent." Id., at 548-550.

I would affirm the judgment below.