APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. Nos. 77-336/341)
Before Aldisert and Higginbotham, Circuit Judges, and Stern, District Judge.*fn*
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.
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.*fn1 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 district 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.
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.
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 (*fn2 ) 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?*fn3
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 ...