Syllabus.

328 U.S.

DAVIS v. UNITED STATES.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 404. Argued February 5, 1946.-Decided June 10, 1946.

1. Having obtained clear evidence of violations of the gasoline rationing regulations through sales without coupons and at above-ceiling prices (which are misdemeanors), officers arrested petitioner, president of the corporation which maintained the offending filling station, at his place of business during business hours and demanded ration coupons covering the aggregate amount of sales. After refusing at first, petitioner soon acquiesced and surrendered the coupons. In his trial for possessing them unlawfully (a misdemeanor), petitioner contended that there had been an unlawful search which resulted in seizure of the coupons and their use in evidence against him, in violation of his rights under the Fourth and Fifth Amendments. The evidence was conflicting; but the District Court found that he had consented to the search and seizure and that no force or threat of force had been employed to persuade him. He was convicted. Held: The conviction is affirmed, because this Court cannot say as a matter of law that the District Court's finding of fact was erroneous. Pp. 593, 594.

2. The gasoline ration coupons 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. P. 588.

3. In the law of searches and seizures a distinction is made between private papers or documents and public property in the custody of a citizen. Wilson v. United States, 221 U. S. 361. Pp. 589-591. 4. 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 clear evidence of criminal activity is known to them. Amos v. United States, 255 U. S. 313, distinguished. Pp. 592, 593.

5. Where 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, since the demand is one of right. P. 593.

151 F. 2d 140, affirmed.

Petitioner was convicted of unlawful possession of gasoline ration coupons in violation of § 2 (a) of the Act of June 28, 1940, as amended by the Act of May 31, 1941, and by § 301 of the Second War Powers Act of March 27, 1942. The Circuit Court of Appeals affirmed. 151 F.2d 140. This Court granted certiorari. 326 U. S. 711. Affirmed, p. 594.

Samuel Mezansky argued the cause for petitioner. With him on the brief were Irving Spieler and Moses Polakoff.

John J. Cooney argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert S. Erdahl and Leon Ulman.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

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. The judgment of conviction was sustained

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. Sec. 2 (a) provides in part:

"(2) ... Whenever the President is satisfied that the fulfillment of requirements for the defense of the United States will result in a shortage in the supply of any material or of any facilities for defense or for private account or for export, the President may allocate such material or facilities in such manner, upon such conditions and to such extent as he shall deem necessary or appropriate in the public interest and to promote the national defense.

"(3) The President shall be entitled to obtain such information from, require such reports and the keeping of such records by, make such inspection of the books, records, and other writings,

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by the Circuit Court of Appeals (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

premises or property of, any person. . ., and make such investigations, as may be necessary or appropriate, in his discretion, to the enforcement or administration of the provisions of this subsection (a).

"(5) Any person who willfully performs any act prohibited, or willfully fails to perform any act required by, any provision of this subsection (a) or any rule, regulation, or order thereunder, whether heretofore or hereafter issued, shall be guilty of a misdemeanor, and shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than one year, or both.” The Office of Price Administration, to which that power had been delegated, issued ration orders for gasoline. Ration Order No. 5C, as it read on June 20, 1944 (8 Fed. Reg. 16423), provided in part as follows:

Sec. 1394.8177 (c): "No person shall have in his possession any gasoline deposit certificate, folder, or any coupon book, inventory or other coupon (whether or not such book was issued as a ration book and whether or not such coupon was issued as a ration or as part of a ration book) or other evidence, or any identifying folder, except the person, or the agent of the person, to whom such book, coupon, certificate or folder was issued or by whom it was acquired in accordance with the provisions of Ration Book [sic] No. 5C."

Sec. 1394.8217 (a): "Every dealer and intermediate distributor shall be accountable for all gasoline, ration credits, gasoline deposit certificates, coupons and other evidences received by him. Gasoline deposit certificates, coupons and other evidences received at or for a place of business shall be, at all times when the dealer or distributor is open to transact business, retained by him at the place of business for which they were received, or deposited in a ration bank account maintained for that place of business, until such time as they are surrendered to a dealer or distributor in exchange for gasoline, or otherwise surrendered pursuant to Ration Order No. 5C. The aggregate gallonage value of gasoline deposit certificates, coupons and other evidences on hand or on deposit for each place of business of a dealer or intermediate distributor, shall, at all times, be equal to, but not in excess of, the number of gallons of gasoline which would be required to fill the storage capacity of such place of business, as shown by the current certificate of registration, . . ." 8 Fed. Reg. 15981.

violation of the rule of Weeks v. United States, 232 U. S. 383, United States v. Lefkowitz, 285 U. S. 452, 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 attendant2 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

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.

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. 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 him that at all." And it appeared that while the two agents were talking with Davis in the waiting room, another agent was in the rear shining a flashlight through an outside window of the inner room and apparently trying

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.