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UNITED STATES v. ENSERRO

October 6, 1975

UNITED STATES of America, Plaintiff,
v.
Robert ENSERRO, Defendant


Curtin, Chief Judge.


The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

On May 30, 1974 the defendant, a pharmacist and owner of the Medicine Shoppe Pharmacy in Jamestown, New York, was indicted in a three-count indictment. He was charged with distribution of Schedule II controlled substances without proper written orders, and with failing to maintain required reports and records. Before the court is a motion to suppress drugs seized as a result of an inspection of the premises of the defendant on the ground that the search was conducted contrary to the provisions of the applicable statute and in violation of defendant's fourth amendment rights.

 In 1970 Congress enacted a comprehensive statute covering many facets of drug abuse prevention and control. See 21 U.S.C. § 801 et seq. 21 U.S.C. § 880 sets forth the procedure for the inspection of "controlled premises" which includes retail pharmacies such as the defendant's. Under § 880(b)(1) the Attorney General is authorized to inspect records and documents at such premises in accordance with the provisions of § 880(b)(2) which provides:

 
Such entries and inspections shall be carried out through officers or employees (hereinafter referred to as "inspectors") designated by the Attorney General. Any such inspector, upon stating his purpose and presenting to the owner, operator, or agent in charge of such premises (A) appropriate credentials and (B) a written notice of his inspection authority (which notice in the case of an inspection requiring, or in fact supported by, an administrative inspection warrant shall consist of such warrant), shall have the right to enter such premises and conduct such inspection at reasonable times.

 Subsection (c) of § 880 provides for those circumstances where a warrant is not required. Under (c) a warrant is not required for inspection of books and records pursuant to an administrative subpoena issued in accordance with § 876 of Title 21, or for the administrative inspection including the seizures of property in the following cases:

 
1. Consent;
 
2. Situations presenting imminent danger to health and safety;
 
3. The inspection of conveyances of easy mobility;
 
4. Exceptional or emergency circumstances where time or opportunity to obtain a warrant is lacking, or
 
5. "Any other situations where a warrant is not constitutionally required."

 The legislative history regarding § 880 is informative:

 
The provisions authorizing the issuance of judicial warrants for administrative inspections under the bill have been inserted because of the Supreme Court's decisions in Camara v. Municipal Court, 387 U.S. 523 [87 S. Ct. 1727, 18 L. Ed. 2d 930] and See v. Seattle, 387 U.S. 541 [87 S. Ct. 1737, 18 L. Ed. 2d 943] both decided on June 5, 1967. . . . The Court held [in both cases that] a warrant was constitutionally required . . . . In deference to these decisions a provision for issuance of judicial warrants for administrative inspections has been inserted in the bill. 1970 U.S.Code Cong. & Ad.News 4623. [Parallel citations omitted.]

 Under the circumstances of this case, the government's present position is that the warrantless search of the premises should be upheld under § 880(c)(5), which eliminates the need for a warrant "in any situations where a warrant is not constitutionally required." The government's theory is that this section, when read in conjunction with United States v. Biswell, 406 U.S. 311 [92 S. Ct. 1593, 32 L. Ed. 2d 87] (1972), eliminates the need for an inspection warrant. Before a discussion of the impact of the Biswell decision is made, the facts will be briefly set forth.

 Some time prior to November 29, 1973, the day of the inspection, the Federal Drug Enforcement Agency [DEA] was informed by the Jamestown, New York Police Department that they had received a complaint about the illegal distribution of drugs at the pharmacy operated by the defendant. Compliance officers of the DEA, with a "Notice of Inspection of Controlled Premises," came to defendant's place of business on that day. Because defendant was not there, they approached Michael Constantino, the registered pharmacist on duty, who was shown a copy of the Notice of Inspection. The agents did not have an inspection warrant. The agents told him that he would face criminal penalties under Title 21 of the ...


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