UNITED STATES of America, Appellant, v. Henry A. MOLT, Jr.
Nos. 78-1254 to 78-1259.
United States Court of Appeals, Third Circuit.
Argued Sept. 8, 1978.
Decided Dec. 28, 1978.
Stern, District Judge, sitting by designation, filed a dissenting opinion.
Robert N. deLuca, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Division, Thomas E. Mellon, Jr., Asst. U. S. Atty., Philadelphia, Pa., for appellant.
Edward F. Kane, Norristown, Pa., for appellee.
Before ALDISERT and HIGGINBOTHAM, Circuit Judges, and STERN, District Judge.
Honorable Herbert J. Stern, of the United States District Court for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
This government appeal from a suppression order, pursuant to 18 U.S.C. § 3731, requires us to review the district court’s interpretation of the Tariff Act of 1930, 19 U.S.C. §§ 1202-1654, as amended, and the court’s finding that appellee did not consent to the search and seizure of importation records and imported merchandise. We find no error and affirm.
I.
Appellee Molt was charged with criminal violation of customs and wildlife conservation laws. On January 7, 1975, two United States customs agents visited Molt’s business establishment, the Philadelphia Reptile Exchange, for a routine examination of his records but Molt informed them that his records were at home. An appointment for Molt to take his records to the customs house was scheduled for January 13, but he failed to appear. On the following day, the two agents returned to the Reptile Exchange and again asked to see appellee’s importation records. He inquired as to the agents’ authority to inspect his records; the agents answered by showing him a copy of 19 U.S.C. §§ 1509, 1510, and 1511. Molt read the statutes and said- he found it hard to believe that the agents could search his office without a warrant. He- telephoned his attorney but the attorney was out of his office. While waiting for the return call, Molt asked what would happen if he did not consent to the inspection. One of the agents responded:
“Let me make it clear to you. Number one, you are not under arrest. Number two, you are not being detained. You are not under any rule or order to show us your records and you could tell us to get out of your store and we’ll have to go.” And I said, “But if I do leave,” I said, “It will be for the purpose of getting into my car, going down to the city, obtaining a warrant, come (sic) back and examine your Customs importation records.” (N.T. 1-29). (Emphasis added)
United States v. Molt, 444 F.Supp. 491, 493 (E.D.Pa.1978). When the attorney finally called, the agent, citing the statutes previously shown to Molt, told the attorney that if requested to leave he would do so but that he would simply get a warrant to examine the records. The agent added that he was authorized to conduct an examination even without a warrant. Molt then told his attorney he had nothing to hide, so the attorney told him he might as well let the agents examine the records.
That interchange formed the basis for Molt’s “consent” to the search that produced the documentary and physical evidence which was the subject of Molt’s motion to suppress. Following a three-day hearing and briefing of the issues, the dis--trict court concluded that the agents’ innocent misrepresentation of their statutory authority to inspect Molt’s records rendered his alleged consent invalid, requiring suppression of all evidence stemming from the tainted inspection. United States v. Molt, supra, at 499.
II.
The government challenges both factual findings and legal conclusions of the district court. We will address the government’s arguments as follows: first, that the court erred in its interpretation of the Tariff Act; second, that the court made erroneous findings of fact and applied an incorrect legal precept in holding that appellee’s consent was invalid; and finally, that seizure of appellee’s records was proper under principles of law not considered by the district court.
A.
At the outset it is important to emphasize that a very narrow issue is before this court. We are to decide only whether Molt’s consent to the search was invalidated by the agents’ innocent misrepresentation of their authority under §§ 1509-11 to search his premises. We do not meet the question of the agents’ authority to obtain a search warrant from a judicial officer under any other statutory authority.. As conceded by the government, “The Customs Agents were not, of course, executing a search warrant pursuant to Section 1595 [] on January 14, 1975, in that they were not executing a search warrant at all.” Brief of appellant at 24. The factual complex described by the government corroborates this statement:
Molt then asked Agent O’Kane by what authority could U. S. Customs agents inspect importation records (App., pp. 55A, 56A). O’Kane opened his briefcase and withdrew, per his normal procedure whenever the question was asked by an importer, a photostatic copy of 19 U.S.C. §§ 1509, 1510, and 1511. (App., pp. 223A, 445A).
Id. at x. Thus, because the government’s theory before this court explicitly removes from proper consideration by us any ramifications of a search conducted under 19 U.S.C. § 1595, we are left with a tightly framed proposition: did the agents’ representation that they had the right to examine importation documents on the premises on the basis of 19 U.S.C. §§ 1509-11 vitiate the consent for the search given by Molt?
The district court held that 19 U.S.C. §§ 1509-11 do not give customs agents the right to examine records at the importer’s place of business. Section 1509 provides that an importer may be cited to appear before customs officers to give testimony, and to produce records regarding merchandise imported within the preceding year. Section 1510 provides for a penalty of $20 to $500 for failure to comply with a citation to appear, testify, or produce records. We think the court was correct in stating that “the only section on which the government can rely at all is 1511 since Molt was not cited to appear before customs officers to give testimony or produce documents.” 444 F.Supp. at 495.
Yet § 1511 provides only that the importer who fails to permit inspection of his records shall be prohibited from importing more merchandise. Stated differently, customs agents acting under § 1511 have no right or authority to inspect records without a citation or warrant; they may simply request the opportunity to do so. If the request is denied, the government’s only remedy is to prohibit further importation. There is no statutory means of compelling disclosures of the records under §§ 1509-11. The district court stated:
Although customs agents can ask to see records, if they represent that they have the unqualified right to make an inspection, they are wrong. . . . Therefore, I hold that the agents acted beyond their authority in telling defendant and his attorney that they had a right to inspect Molt’s records on his premises.
Id. We think this interpretation of the statute is correct.
B.
The government argues that the district court erred in declaring Molt’s consent invalid both because of erroneous factual findings and because of the incorrect application of legal precepts.
The arguably erroneous findings of fact relate to the representation of the customs agents that they had a right to conduct an examination of Molt’s records at his business establishment. The lengthy transcript of the suppression hearing contains conflicting testimony as to whether the agents claimed a “right” or “authority” to inspect, or whether they threatened to obtain a “citation” or a “warrant.” The government, relying on Molt’s misstatements of fact to the agents, e. g., that his records were at home and that he had not imported wildlife for over two years, suggests that the court should not have credited Molt’s testimony at the hearing but should have believed the testimony of the government witnesses instead.
Our standard of review for factual findings is the clearly erroneous test, defined in Krasnov v. Dinan, 465 F.2d 1298, 1302 (1972):
It is the responsibility of an appellate court to accept the ultimate factual determination of the fact-finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data.
We have examined the record and sympathize with the government’s observation that there is conflicting evidence bearing on the challenged facts. Nevertheless, the record support for the district court’s findings is a veritable rainbow compared to the pallid void which could justify appellate substitution of the government’s version of the facts. Molt’s testimony is corroborated by his attorney, transcript of hearing at 1-159 to 1-160, and the testimony of the customs agents themselves supports the district court’s finding that they told Molt they could obtain a warrant, id. at 1-29, and generally conveyed a false impression of authority to search, id. at 1-29, 1-160. There is no doubt that this evidence has sufficient credible coloration to support the findings.
The government also argues, as it must, that even assuming misrepresentation of the scope of their authority by the customs agents, Molt’s consent was voluntary under Fourth Amendment standards established by the Supreme Court. The thrust of this argument is that the district court ignored the teaching of Schneckloth v. Bustamonte, 412 U.S. 218, 249, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), that the government may establish voluntariness of consent without proving that a defendant knew he need not consent to a warrantless search, and that the court failed to take into account all the circumstances as required by this court in United States ex rel. Harris v. Hendricks, 423 F.2d 1096 (3d Cir. 1970). The government urges that Molt’s college education, his business experience, and his consultation with his attorney prior to consenting combine to create an atmosphere of voluntariness.
We note, first, that the district court explicitly referred to Schneckloth’s holding that “the government need not establish [knowledge of the right to refuse consent] as the sine qua non of an effective consent,” 444 F.Supp. at 496. The court also referred to the factors expressed in Hendricks, supra, which should be assessed in determining voluntariness of consent.- Id. We cannot conclude, therefore, that the court applied an erroneous legal standard. Consequently, the government’s argument is that the court incorrectly applied the precept to the facts of this case.
We will not reverse the district court’s conclusion for two reasons. First, although Sehneckloth does not require proof that a defendant knows he has a right to refuse consent, such knowledge is one factor to be- considered in assessing voluntariness. 412 U.S. at 249, 93 S.Ct. at 2041. An important consideration underlying the Sehneckloth rule is “the difficulty of the prosecution’s burden” if it had to prove “the nature of a person’s subjective understanding.” 412 U.S. at 230, 93 S.Ct. at 2049. When evidence exists to show the opposite — that a defendant believed he must consent — such evidence weighs heavily against a finding that consent was voluntarily given. And when that belief stems directly from misrepresentations by government agents, however innocently made, we deem the consent even more questionable. Second, we are unwilling to accord the importance suggested by the government to the factor of Molt’s communication with his attorney prior to acquiescing in the search. Certainly Molt’s representation to the attorney that he had nothing to hide, the attorney’s opportunity to read the statute, and the attorney’s advice to Molt that he permit the inspection weigh in favor of the government’s position. Nevertheless, “[vjoluntariness is a question of fact to be determined from all the circumstances . . . Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059. To overturn the district court’s finding that Molt’s consent was not voluntary would be tantamount to holding that, as a matter of law, consent based on an attorney’s advice must be voluntary. We return to the rule of Krasnov, supra, and based on the conflicting credible evidence, we will not disturb the district court’s finding.
C.
The district court concluded that the seizure of Molt’s records was improper even if he had consented to the search. The government argues that the court “completely misconstrue[d]” the regulations on which it based its opinion, citing different statutory authority for the seizure of records by customs agents. We need not address the propriety of the seizure nor the interplay of the statutes and regulations inasmuch as we have held that Molt’s consent was invalid. The government does not attempt to justify the seizure under search warrant powers authorized by 19 U.S.C. § 1595, brief of appellant at 24, or under the plain view doctrine, id. at 26, so the seizure stemming from the illegal search cannot be justified.
Similarly, we need not discuss the validity of a second search conducted on January 22, 1975 on the authority of a warrant based on information obtained in the first search. The government concedes that if the original search and seizure was illegal, then the seizure of additional records pursuant to the subsequently issued warrant was also illegal. Id. at 28. Having found the original search to be illegal, the evidence seized pursuant to the warrant must also be suppressed as fruit of the poisonous tree.
Accordingly, the suppression order will be affirmed.
. § 1509. Examination of importer and others Appropriate customs officers may cite to appear before them or any of them and to examine upon oath, which said officers or any of them are authorized to administer, any owner, importer, consignee, agent, or other person upon any matter or thing which they, or any of them, may deem material respecting any imported merchandise then under consideration or previously imported within one year, in ascertaining the classification or the value thereof or the rate or amount of duty; and they, or any of them, may require the production of any letters, accounts, contracts, invoices, or other documents relating to said merchandise, and may require such testimony to be reduced to writing, and when so taken it shall be filed and preserved, under such rules as the United States Customs Court may prescribe, and such evidence may be given consideration in subsequent proceedings relating to such merchandise.
§ 1510. Penalties for refusal to give testimony
If any person so cited to appear shall neglect or refuse to attend, or shall decline to answer, or shall refuse to answer in writing any interrogatories, and subscribe his name to his deposition, or to produce such papers when so required by a judge of the United States Customs Court, or an appropriate customs officer, he shall be liable to a penalty of not less than $20 nor more than $500; and if such person be the owner, importer, or consignee, the appraisement last made of such merchandise, whether made by an appropriate customs officer, or, a judge of the United States Customs Court, shall be final and conclusive against such person; and any person who shall willfully and corruptly swear falsely on an examination before any judge of the United States Customs Court, or appropriate customs officer, shall be deemed guilty of perjury; and if he is the owner, importer, or consignee, the merchandise shall be forfeited or the value thereof may be recovered from him.
§ 1511. Inspection of importer’s books If any person importing merchandise into the United States or dealing in imported merchandise fails, at the request of the Secretary of the Treasury, or an appropriate customs officer, or the United States Customs Court, or a judge of such court, as the case may be, to permit a duly accredited officer of the United States to inspect his books, papers, records, accounts, documents, or correspondence, pertaining to the value or classification of such merchandise, then while such failure continues the Secretary of the Treasury, under regulations prescribed by him, (1) shall prohibit the importation of merchandise into the United States by or for the account of such person, and (2) shall instruct customs officers to withhold delivery of merchandise imported by or for the account of such person. If such failure continues for a period of one year from the date of such instructions the appropriate customs officer shall cause the merchandise, unless previously exported, to be sold at public auction as in the case of forfeited merchandise.
. 19 U.S.C. § 1595 provides:
(a) If any collector of customs or other officer or person authorized to make searches and seizures shall have cause to suspect the presence in any dwelling house, store, or other building or place of any merchandise upon which the duties have not been paid, or which has been otherwise brought into the United States contrary to law, he may make application, under oath, to any justice of the peace, to any municipal, county, State, or Federal judge, or to any United States commissioner, and shall thereupon be entitled to a warrant to enter such dwelling house in the daytime only, or such store or other place at night or by day, and to search for and seize such merchandise: Provided, That if any such house, store, or other building, or place in which such merchandise shall be found, is upon or within ten feet of the boundary line between the United States and a foreign country, such portion thereof as is within the United States may forthwith be taken down or removed.
(b) Any person authorized by this chapter to make searches and seizures, or any person assisting him or acting under his directions, may, if deemed necessary by him or them, enter into or upon or pass through the lands, inclosures, and buildings, other than the dwelling house, of any person whomsoever, in the discharge of his official duties.
. Thus we expressly do not meet the question of the agents’ ability to obtain a warrant to search Molt’s premises under 19 U.S.C. § 1595.
. The dissent injects an issue neither briefed nor argued in this court, to-wit, the exception to the search warrant requirement in industries which are “closely regulated.” Dissenting Opinion at 1254. We will not notice this argument for several reasons. First, the government has removed the general customs search warrant authority issue from this appeal, thus making irrelevant general case law dealing with search warrants and exceptions thereto. Second, the government itself does not rely on the argument injected sua sponte by the dissent. Third, the government has not requested a remand for additional testimony and ostensibly prefers to rely on the testimony adduced at the three-day hearing. Thus when the dissent states “yet, neither the district court nor the majority considers this possibility,” dissenting opinion at 1255, we are constrained to observe that no litigant in this appeal, including the government, considered this possibility.