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UNITED STATES v. GREENBERG

November 29, 1971

UNITED STATES of America, Plaintiff,
v.
Jack J. GREENBERG, Defendant


McCune, District Judge.


The opinion of the court was delivered by: MCCUNE

McCUNE, District Judge.

 We have before us defendant Jack Greenberg's motion for return of property and suppression of evidence made pursuant to Rule 41 of the Federal Rules of Criminal Procedure. *fn1"

 The legislation under which the government has acted is new. No cases have been brought to our attention which construe this statute. In enacting the 1970 Act, Congress recognized both the utility of many of the drugs covered by the statute and the grave threat presented to our society by the abuse of these drugs, 21 U.S.C.A. § 801 (1971 supp.). Congress also concluded that effective interstate control of drug traffic could be realized only if intrastate incidents of the traffic were also controlled. The 1970 Act endeavors by its terms to cover any and all aspects of the manufacture, and distribution of the controlled drugs with stated exceptions, 21 U.S.C.A. § 822. The statutory scheme requires all engaged in the manufacture and distribution to obtain registration from the United States Attorney General. Those required to register under the 1970 Act are required to keep certain records, 21 U.S.C.A. § 827 (1971 supp.), and failure to keep such records is unlawful, 21 U.S.C.A. § 842(a)(5). Part E, (§§ 871-886) covers the administration and enforcement of the Act and includes provision for search warrants (§ 876), administrative inspection (§ 880) and forfeiture proceedings (§ 881).

 Defendant Greenberg presents the following as reasons for granting the relief he asks:

 1. The warrant did not describe with sufficient specificity the items and types of property to be seized.

 2. There were not sufficient grounds presented to the magistrate to establish that probable cause existed for the issuance of the warrant.

 3. The magistrate was not presented sufficient grounds to establish the general credibility and reliability of the affiant nor to establish sufficiently the credibility and reliability of the affiant concerning the specific circumstances of the instant request for issuance of the warrant.

 4. Defendant attacks the seizure primarily as exceeding the authority of the warrant.

 Stated briefly, defendant contends that the warrant was issued without compliance with the guides enunciated in Aguilar2 and Spinelli.3 We do not believe that the criteria set forth in those cases as definitive of probable cause for Fourth Amendment purposes are particularly applicable to that phrase as it is used in 21 U.S.C.A. § 880(d)(1). Section 880(d) governs the issuance of administrative inspection warrants. It does require that such warrants be issued by a judge or magistrate and then only on showing of probable cause. But probable cause is defined by the Act as

 
"a valid public interest in the effective enforcement of this subchapter [ 21 U.S.C.A. §§ 801-886] or regulations thereunder sufficient to justify administrative inspections of the area * * *." 21 U.S.C.A. § 880(d)(1).

 The purpose of the enactment of the 1970 Act was to provide a system for the control of drug traffic and to prevent the abuse of drugs. The statutory scheme envisioned by the Act is one of control through record keeping. Any person who desires to shoulder the responsibility of engaging in the manufacture or distribution of these products subjects himself to the regulatory system laid down by the 1970 Act. Registrants are required to keep certain records and to keep them available for inspection. (§ 827(b)). Inspections are authorized either under regulations promulgated by the Attorney General (§ 822(f)) or under inspection warrants (§ 880(d)). An agent of the Bureau of Narcotics can obtain such an inspection warrant on showing a valid public interest in the inspection of a particular registrant's premises. We do not believe that Congress meant by a valid public interest that the agent must show that there is probable cause to believe that a crime has been committed and that the fruits, etc., of that crime are on the premises in question. To the contrary we believe that in the absence of any evidence of the commission of some violation of the Act, a valid public interest in the enforcement of the Act could still be shown. For instance, there is a valid public interest in insuring compliance with the record keeping requirements of the Act. To this end it would seem entirely proper to conduct an inspection of a particular premises simply because a substantial period of time had passed since the last inspection. In the instant case no inspection had ever been made of the premises in question.

 We also believe that a valid public interest in enforcement of the Act could be made out by suspicious actions on the part of a registrant, providing that such suspicions were not patently groundless. We believe that such suspicious conduct is made out in the affidavit of agent Rowe by his allegations that defendant ...


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