Davis v. United States (328 U.S. 582)/Opinion of the Court

by William O. Douglas

United States Supreme Court

328 U.S. 582

DAVIS  v.  UNITED STATES.

 Argued: Feb. 5, 1946. --- Decided: June 10, 1946

Petitioner was convicted under an information charging him with unlawfully having in his possession on June 20, 1944, 168 gasoline ration coupons, representing 504 gallons of gasoline. ^[1] The judgment of conviction was sustained by the Circuit Court of Appeals (2 Cir., 151 F.2d 140) over the objection that there was an unlawful search which resulted in the seizure of the coupons and their use at the trial in violation of the rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775; and related cases. The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented.

Davis was president of a corporation by the name of Davis Auto Laundry Corporation which maintained a gasoline filling station in New York City. He was suspected of running a black market in gasoline. Several agents drove to a place near the gasoline station and observed it for a few hours. They had no search warrant nor a warrant for the arrest of petitioner. Two of the agents drove their cars into the station and asked for gas. Petitioner was not present at the time. But an attendant, an employee of petitioner, was present and waited on them. Through her each of the two agents succeeded in purchasing gas without gasoline ration stamps by paying twenty cents a gallon above the ceiling price. Shortly thereafter they arrested her for selling gasoline without coupons and above the ceiling price. She said that in doing so she was following petitioner's instructions. While she was being questioned by the agents, petitioner returned to the station in his car. They immediately arrested him on the same charge as the attendant ^[2] and searched his car. They demanded and received from him the keys to tin boxes attached to the gasoline pumps and in which gasoline ration coupons were kept. One of them began to examine and measure the gasoline storage tanks and their contents. It soon appeared that the gasoline ration coupons found in the tin boxes were not sufficient to cover the amount by which the capacity of the storage tanks had been diminished by sales.

While this examination of the storage tanks was under way, petitioner went with two of the agents into his office which was on the premises. ^[3] The office consisted of a waiting room and inner room. He was questioned in the waiting room for about an hour. A door led from the waiting room into the inner room where records were kept. The door to it was locked. Petitioner at first refused to open it. When told that the examination of the tanks had revealed a shortage of coupons, petitioner assured the agents that he had sufficient coupons to cover the shortage and that they were in the locked room. The officers asked to see the coupons and based their demand on the fact that the coupons were property of the government of which petitioner was only the custodian. Petitioner persisted, however, in his refusal to unlock the door. Before long he did unlock it, took from a filing cabinet the coupons on which the conviction rests, and gave them to the agents. He testified that he did so because the agents threatened to break down the door if he did not. The District Court did not believe petitioner's version of the episode. One agent testified: 'Q. Did you try to convince Davis that he ought to open that door leading into the private office? A. I didn't try to convince him. I told him that he would have to open that door. Q. Did you tell him if he did not you would break it down? A. I did not tell himt hat at all.' And it appeared that while the two agents were talking with Davis in the waiting room, another agent was in the rear shinging a flashlight through an outside window of the inner room and apparently trying to raise the window. According to one of the agents, when petitioner saw that, he said, 'He don't need to do that. I will open the damned door.' Some six weeks later petitioner was arrested on a warrant and arraigned.

The District Court found that petitioner had consented to the search and seizure and that his consent was voluntary. The Circuit Court of Appeals did not disturb that finding, although it expressed some doubt concerning it. In its view, the seized coupons were properly introduced into evidence because the search and seizure, being incidental to the arrest, were 'reasonable' regardless of petitioner's consent.

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

And the Fifth Amendment provides in part that 'No person * * * shall be compelled in any Criminal Case to be a witness against himself * * *.'

The law of searches and seizures as revealed in the decisions of this Court is the product of the interplay of these two constitutional provisions. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. It reflects a dual purpose-protection of the privacy of the individual, his right to be 1et alone; protection of the individual against compulsory production of evidence to be used against him. Boyd v. United States, supra; Weeks v. United States, supra. And see Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494.

We do not stop to review all of our decisions which define the scope of 'reasonable' searches and seizures. For they have largely developed out of cases involving the search and seizure of private papers. We are dealing here not with private papers or documents, but with gasoline ration coupons which never became the private property of the holder but remained at all times the property of the government and subject to inspection and recall by it.

At the times relevant here, gasoline was rationed. Dealers could lawfully sell it only on receipt of ration coupons. ^[4] They in turn could receive their supplies of gasoline from the distributors only on delivery of coupons. ^[5] It was required that a dealer at all times have coupons on hand at his place of business or in a bank equal to but not in excess of the gallonage necessary to fill his storage tanks. ^[6] Possession of coupons obtained in contravention of the regulations was unlawful. ^[7] The coupons remained the property of the Office of Price Administration ^[8] and were at all times subject to recall by it. ^[9] And they were subject to inspection at all times. ^[10]

We are thus dealing not with private papers or documents but with public property in the custody of a citizen. The distinction between the two classes of property in the law of searches and seizures was recognized in Wilson v. United States, 221 U.S. 361, 380, 31 S.Ct. 538, 544, 55 L.Ed. 771, Ann.Cas.1912D, 558, where the Court stated:

'But the physical custody of incriminating documents does not of itself protect the custodian against their compulsory production. The question still remains with respect to the nature of the documents and the capacity in which they are held. It may yet appear that they are of a character which subjects them to the scrutiny demanded and that the custodian has voluntarily assumed a duty which overrides his claim of privilege. This was clearly implied in the Boyd case, where the fact that the papers involved were the private papers of the claimant was constantly emphasized. Thus, in the case of public records and official documents, made or kept in the administration of public office, the fact of actual possession or of lawful custody would not justify the officer in resisting inspection, even though the record was made by himself and would supply the evidence of his criminal dereliction. If he has embezzled the public moneys and falsified the public accounts, he cannot seal his official records and withhold them from the prosecuting authorities on a plea of constitutional privilege against self-crimination. The principle applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established. There the privilege which exists as to probate papers, cannot be maintained.'

The Court proceeded to analyze the English and American authorities and added, 221 U.S. at pages 381, 382, 31 S.Ct. at page 545, 55 L.Ed. 771, Ann.Cas.1912D, 558:

'The fundamental ground of decision in this class of cases, is that where, by virtue of their character and the rules of law applicable to them, the books and papers are held subject to examination by the demanding authority, the custodian has no privilege to refuse production although their contents tend to criminate him. In assuming their custody he has accepted the incident obligation to permit inspection.'

The distinction is between property to which the government is entitled to possession and the property to which it is not. ^[11] See 8W igmore on Evidence, 3d Ed., § 2259c. The distinction has had important repercussions in the law, beyond that indicated by Wilson v. United States, supra. For an owner of property who seeks to take it from one who is unlawfully in possession has long been recognized to have greater leeway than he would have but for his right to possession. The claim of ownership will even justify a trespass and warrant steps otherwise unlawful. Richardson v. Anthony, 12 Vt. 273; Madden v. Brown, 8 App.Div. 454, 40 N.Y.S. 714; State v. Dooley, 121 Mo. 591, 26 S.W. 558.

We do not suggest that officers seeking to reclaim government property may proceed lawlessly and subject to an restraints. Nor do we suggest that the right to inspect under the regulations subjects a dealer to a general search of his papers for the purpose of learning whether he has any coupons subject to inspection and seizure. The nature of the coupons is important here merely as indicating that the officers did not exceed the permissible limits of persuasion in obtaining them.

They appeared on the premises during business hours. They had ocular evidence that a misdemeanor had been committed, a crime to which petitioner was an aider or abetter, ^[12] since, according to the attendant, she made the illegal sales pursuant to petitioner's instructions. Since sales were being made without receipt of coupons from customers, it was fair to assume (unless, as was at no time suggested, the business was being liquidated) that petitioner somewhere had a supply of coupons adequate to replenish his storage tanks. The inspection which was made was an inspection of the tanks attached to the pumps. And the search was of the office adjacent to the pumps-the place where petitioner transacted his business. Moreover the officers demanded the coupons on the basis that they were property of the government and that petitioner was merely the custodian of them. And there was no general, exploratory search. Only the contraband coupons were demanded; only coupons were taken.

These facts distinguished this case from such cases as Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654, where officers without a search warrant swoop down on a private residence, obtain admission through the exertion of official pressure, and seize private property. The filling station was a place of business, not a private residence. The officers' claim to the property was one of right. For the coupons which they demanded to see were government property. And the demand was made during business hours. Whatever may be the limits of inspection under the regulations, law enforcement is not so impotent as to require officers, who have the right to inspect a place of business, to stand mute when such clear evidence of criminal activity is known to them.

Where the officers seek to inspect public documents at the place of business where they are required to be kept, permissible limits of persuasion are not so narrow as where private papers are sought. The demand is one of right. When the custodian is persuaded by argument that it is his duty to surrender them and he hands them over, duress and coercion will not be so readily implied as where private papers are involved. The custodian in this situation is not protected against the production of incriminating documents. Wilson v. United States, supra. The strict test of consent, designed to protect an accused against production of incriminating evidence, has no place here. The right of privacy, of course, remains. But, as we have said, the filling station was a place of business, not a private residence. The right to inspect existed. And where one is seeking to reclaim his property which is unlawfully in the possession of another, the normal restraints against intrusion on one's privacy, as we have seen, are relaxed. The District Court found, after hearing the witnesses, that petitioner consented-that although he at first refused to turn the coupons over, he soon was persuaded to do so and that force or threat of force was not employed to persuade him. According to the District Court, the officers 'persuaded him that it would be a better thing for him to permit them to examine' the coupons; 'they talked him into it.' We cannot say as a matter of law that that finding was erroneous. The public character of the property, the fact that the demand was made during business hours at the place of business where the coupons were required to be kept, the existence of the right to inspect, the nature of the request, the fact that the initial refusal to turn the coupons over was soon followed by acquiescence in the demand-these circumstances all support the conclusion of the District Court. We accordingly affirm the judgment below without reaching the question whether but for that consent the search and seizure incidental to the arrest were reasonable.

Affirmed.

Mr. Justice JACKSON took no part in the consideration or decision of this case.

Mr. Justice FRANKFURTER, with whom Mr. Justice MURPHY concurs, dissenting.

Notes

1. The information charged a violation of § 2(a) of the Act of June 28, 1940, 54 Stat. 676, as amended by the Act of May 31, 1941, 55 Stat. 236 and by Title III, § 301 of the Second War Powers Act of March 27, 1942, 56 Stat. 177, 50 U.S.C.App., Supp. IV § 633, 50 U.S.C.A.Appendix, § 633, Sec. 2(a) provides in part
2. Selling gasoline without receipt of ration coupons, selling gasoline in excess of the ceiling price, or unlawfully possessing ration coupons is a misdemeanor. See § 2(a), supra, note 1. A felony is an offense punished by death or imprisonment for a term exceeding one year. Criminal Code § 335, 18 U.S.C. § 541, 18 U.S.C.A. § 541.
3. The filling station was located in a building about 250 feet long. One set of pumps was near the entrance to one street; the other set was at the opposite end near the entrance to another street. The office was located about half-way between the two sets of pumps.
4. See Ration Order No. 5C, supra, note 1, §§ 1394.8152, 1394.8153.
5. Id., § 1394.8207.
6. Id., § 1394.8217(a), supra.
7. Id., § 1394.8177(c), supra, note 1.
8. Id., § 1394.8227(b) provided that all 'gasoline deposit certificates and all coupon books, coupons, and other evidences are, and when issued shall remain, the property of the Office of Price Administration.'
9. Id., § 1394.8104(a):
10. Id., § 1394.8235(b) provided in part:
11. This distinction was noted in another connection in Boyd v. United States, supra, 221 U.S. at pages 623, 624, 6 S.Ct. at pages 528, 529, 29 L.Ed. 746, where the Court said:
12. Criminal Code § 332, 18 U.S.C. § 550, 18 U.S.C.A. § 550, provides:

'Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.'