# Opposition Brief — Argent Chemical Laboratories, Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1790%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1115 ## Text [ t\ \ \o/ FEB 14 1997 | Supreme Court, U.S. P22 Dp | No. 96-766 i . Gn the Supreme Court of the Gnited States OCTOBER TERM, 1996 ARGENT CHEMICAL LABORATORIES, INC., ETC., PETITIONER UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General DOUGLAS N. LETTER JACOB M. LEWIS Attorneys Department of Justice Washington, D.C. 20530-0001 202) 514-2217 QUESTION PRESENTED Whether the seizure of veterinary drugs pursuant to a warrant for arrest in rem issued by the district court in conformity with the procedures outlined in the Federal Food, Drug, and Cosmetic Act and the Supplemental Rules for Certain Admiralty and Mari- time Claims, after an uncontested warrantless in- spection of petitioner’s premises, violates the Fourth Amendment. (I) TABLE OF CONTENTS Page FR EE ee ae 1 " an Se a 1 Statement ............ Suuseenuseenvetabeseoesebesetoadneseeeseeseessesonsebonces l ETE 5 STII siitiessichltthidianantlisestestitnaeadeecseackdecaavievecencseeveeeees 14 TABLE OF AUTHORITIES Cases: Colonnade Catering Corp. v. United States, 397 ER 3, 5, 6, 1 Donovan v. Dewey, 452 U.S. 594 (1981) .............. 5, 9, Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 SUITE diliiladuivsnidbadnseiesintniaubisiantadbednensenesteceessecseecenes 7,10 G.M. Leasing Corp. v. United States, 429 U.S. 338 TET Seliicidibidninseebnenenteeseubageccteecessteinbcebrterecceseccoveees 5 Horton v. California, 496 U.S. 128 (1990) ............... 7 Katz v. United States, 389 U.S. 347 (1967) ............. 6 Minnesota v. Dickerson, 508 U.S. 366 (1993) .......... 6 New York v. Burger, 482 U.S. 691 (1987) .......... 4, 5, 6, 8, 9, 13 S & S Pawn Shop, Inc. v. City of Del City, 947 F.2d es 13 See v. City of Seatlle, 387 U.S. 541 (1967) ......cccccc0c. 5 Skinner v. Railway Labor Executives’ Ass’n, EEE ncn ee a 6-7, 9 National Treasury Employees Union v. Von Raab, REE. Ea Re 10-11 United States v. 9/1 KG Containers, 854 F.2d 173 (7th Cir.1988), cert. denied, 489 U.S. 1010 (1989) .... 8 United States v. Biswell, 406 U.S. 311 (1972) ......... 3, 5, 6, 12 United States v. Device, Labeled “Theramatic”, Re We BAP COE Ge BURT) cocececceccccecccnccsceccooceeeees 14 IV Cases—Continued: Page United States v. Dotterweich, 320 U.S. 277 (1943) .. 9 Unied States v. Edwards, 415 U.S. 800 (1974) ........ 12 United States v. Jacobsen, 466 U.S. 109 (1984) .... 12 United States v. Jamieson-McKames Pharmaceu- ticals, Inc., 651 F.2d 532 (8th Cir. 1981), cert. ORS BO Oe 7 Winters v. Board of County Commissioners, 4 F.3d 848 (10th Cir. 1993), cert. denied, 114 S. Ct. 1539 COED ccincnicincctabidedinesibaininGhetissiitadcetnliiensinaiictsaenien 13 Wisniewski v. United States, 353 U.S. 901 (1957) ... 14 Constitution, statutes, regulation and rules: U.S. Const. Amend. IV .............. 3, 5, 6, 7, 10, 11, 12, 13 Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq.: ™ Be Fes SD .nccctecciscnsvsadinectarsententctcianadinell 2 Fe Felis ME ciliscttchicssascctcnttntessdsicdiininiaiaieabesdiieeia 7,13 Se UE ee NEED cccninsosdtnburasentctivecepuduins 2, 9, 10 IEC TED” aiinsicicciieittiaiieenainentitenieametniniaunie 2,9 iiss ae See 10 EE, TED susiisiniicnsscutiinntanvenemmianantnaudinidaanits Tk. SER CIIIIEEIED ncessbicsuessenmsepennebedenietinoniies Be Mn MITE a hiss ccterennenesnniitiicanndieiasaieissctionaiaiaie Oe ia ia Be Re IIE ccccansnacceneessdenmmusasidccospaiasticesbaneuaniaies Se TER IED kcitianecasovenisddbtdernietaidobiaiestbentinnen BF a ee IEE siiiscccdhicerentictnckaceibinanciedetiiiticanbeantins FD Pe Sttlericinicstsabiccisiniccctinnpticcinndunandiioes Bt | FS a SE rE SEE Sy ee i es ED chiseiniviciiiensidveilibiibeniamesiaiietibitiatanaie Oe RD Giiciinintcaciidesiiennieiienenslidiaehaiend 7 Bs kN ERR ES aN ee Admiralty Suppl. R.: a Rte SEE NRE RCI FO, Se Ni ann PE ay ee CeHAININIIVANANSIwOA nN ~1 hb ee ee a nee Rules—Continued: I i RRL Ee iat sett ee ae I « ccitausmmbakoniets RE PE AR tae PS PRL aE RENN Ma EP ECO Re Miscellaneous: FDA Regulatory Practices Manual, Ch. 6 (Aug. 1995) COCO EEE EEE EEE EEE EEE H EEE EEE EEE HEE E EEE EEE EEEEEEHEE EEE Page 2, 10 2,3 10 10 ieee In the Supreme Court of the Gnited States OCTOBER TERM, 1996 No. 96-766 ARGENT CHEMICAL LABORATORIES, INC., ETC., PETITIONER Vv. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. Al- Al4) is reported at 93 F.2d 572. The opinion of the district court (Pet. App. B1-B10) is unreported. JURISDICTION The judgment of the court of appeals was entered on August 16, 1996. The petition for a writ of certiorari was filed on November 14, 1996. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT 1. The Federal Food, Drug, and Cosmetic Act (FDCA) prohibits persons from adulterating medical or veterinary drugs in interstate commerce, and from selling or receiving such drugs that have been adul- (1) 2 terated. 21 U.S.C. 331(a)-(c). The FDCA expressly provides that any article of a drug that has been adulterated “shall be liable to be proceeded against while in interstate commerce, or at any time thereaf- ter, on libel of information and condemned in any district court of the United States * * * within the jurisdiction of which the article is found.” 21 U.S.C. 334(a)(1). The statute further states that “[t]Jhe article * * * proceeded against shall be liable to seizure by process pursuant to the libel, and the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty.” 21 U.S.C. 334(b). The Supplemental Rules for Certain Admiralty and Maritime Claims (Supplemental Rules) “apply to the procedure in statutory condemnation proceedings analogous to maritime actions in rem, whether within the admiralty and maritime jurisdiction or not.” Admiralty Suppl. R. A. Under the Supplemental Rules, an action in rem may be brought “[wJhenever a statute of the United States provides for a maritime action in rem or a proveeding analogous thereto.” Admiralty Suppl. R. C(1)(b). Such an action is com- menced by a complaint, which must “be verified on oath or solemn affirmation,” and which must “de- scribe with reasonable particularity the property that is the subject of the action.” Admiralty Suppl. R. C(2). The Supplemental Rules require prior judicial re- view of the complaint before the issuance of a warrant for arrest of the property subject to the action, “[e]x- cept in actions by the United States for forfeitures for federal statutory violations.” Admiralty Suppl. R. C(3). Where an action by the United States for a for- feiture for a federal statutory violation is involved, 3 the Supplemental Rules explicitly provide that the “the clerk, upon filing of the complaint, shall forthwith issue a summons and warrant for the arrest of the vessel or other property without requiring a certification of exigent circumstances.” I[bid. 2. Petitioner Argent Chemical Laboratories is en- gaged in the business of manufacturing and repackag- ing veterinary drugs. Pet. App. A2. On July 29, 1994, as the result of several FDA inspections of peti- tioner’s facilities, the United States obtained a war- rant for arrest of certain of petitioner’s drugs from the deputy clerk of the United States District Court for the Western District of Washington, in accor- dance with the Supplemental Rules. Pet. App. A2-A3; Pet. 3. Petitioner filed a motion to quash the government’s warrant on the ground that the seizure of its drugs without a prior judicial warrant violated the Fourth Amendment. Pet. App. A3. The district court granted petitioner’s motion, concluding that, notwith- standing the FDCA and the Supplemental Rules, the government was required by the Fourth Amendment to “obtain[{] a warrant based upon probable cause and authorized by a detached judicial officer.” Jd. at B9. It therefore ordered the seized drugs returned to petitioner. Ibid. 3. The court of appeals reversed. Pet. App. Al-A14. After reviewing this Court’s cases dealing with Fourth Amendment protections applicable to “closely regulated” businesses, see Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); United States v. Biswell, 406 U.S. 311 (1972), the court concluded that the seizure of petitioner’s drugs did not violate the Fourth Amendment. Pet. App. Al4. 4 The court first reviewed the extensive regulations applicable to the preparation, packaging and promo- tion of animal drugs (Pet. App. A6-A7), and concluded that the veterinary drug industry is “closely re- gulated” under Colonnade-Biswell. The court also found that the other criteria for application of the Colonnade-Biswell doctrine had been met: (1) the government has a “substantial interest” in regulat- ing the safety and effectiveness of animal drugs, (2) warrantless searches and seizures further the regu- latory scheme by deterring violations of regulatory requirements and removing nonconforming products from the marketplace, and (3) by advising the com- mercial owner that the premises are subject to search, while at the same time limiting the scope of that search, the statute and the Supplemental Rules “provide a constitutionally adequate substitute for a warrant.” Jd. at A8-A9. See generally New York v. Burger, 482 U.S. 691, 701-702 (1987). The court of appeals rejected as “untenable” pe- titioner’s contention that the Colonnade-Biswell doctrine applies only to inspections and not to sei- zures, observing that decisions of this Court have applied the exception to “seizures of contraband dis- covered during the unwarranted inspections,” and have “approved the use of evidence seized in the course of the inspection.” Pet. App. Al0. The court also “attach[ed] no significance” to the fact that the warrant for arrest of petitioner’s drugs was executed “some time after” the FDA’s last inspection of peti- tioner’s premises. Jd. at Al3. “If a random, unan- nounced inspection does not violate [petitioner’s] Fourth Amendment rights of privacy,” the court stated, “we see no reason why the unannounced exe- cution of a warrant under the Supplemental Rules 5 would do so.” Jbid. In short, the court concluded, because the seizure of petitioner’s drugs was from “the premises of a closely regulated manufacturer” and was “conducted within the regulatory scheme in j the manner Congress has authorized,” there was “no \ need to brigade the seizure with an inspection in order to legitimize it.” Ibid. ARGUMENT The decision below is correct and does not conflict with the decision of any other court of appeals. This case thus does not warrant further review. 1. Although the Fourth Amendment’s protections apply to commercial as well as residential premises, see, ¢.g., See v. City of Seattle, 387 U.S. 541, 545-546 (1967), “a business, by its special nature and volun- tary existence, may open itself to intrusions that would not be permissible in a purely private context.” G.M. Leasing Corp. v. United States, 429 U.S. 338, 353 (1977). Thus, a judicial warrant is not always required when the government seeks to conduct a search of a business “long subject to close super- vision and inspection,” Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970), or that has been “pervasively regulated.” United States v. Biswell, 406 U.S. 311, 316 (1972). The so-called Colonnade-Biswell exception to the Fourth Amendment’s judicial warrant requirement derives from the fact that owners of commercial prop- | erty subject to comprehensive government super- vision have a “reduced expectation of privacy,” New y York v. Burger, 482 U.S. 691, 702 (1987), and “an inspection program may in some cases be a neces- sary component of federal regulation.” Donovan v. Dewey, 452 U.S. 594, 599 (1981). Under the exception, 6 the government may conduct a search of a “closely regulated” commercial business without a warrant if three criteria are met. Burger, 482 U.S. at 702. First, the regulatory scheme authorizing the war- rantless inspection must be supported by a “sub- stantial” government interest. Jbid. Second, war- rantless inspections must be “necessary to further [the] regulatory scheme.” Jbid. Third, “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a consti- tutionally adequate substitute for a warrant.” Jd. at 703. The Colonnade-Biswell exception applies to sei- zures as well as searches, as the court of appeals recognized. Pet. App. Al0. Colonnade itself was a suit for return of “seized liquor,” 397 U.S. at 72, and this Court there took care to emphasize Congress’s “broad authority to fashion standards of reasonable- ness for searches and seizures” in the liquor indus- try. Id. at 77 (emphasis added). Similarly, in Biswell, the issue involved the admissibility of two unlicensed firearms that had been seized during a warrantless search. See 406 U.S. at 312. Moreover, the Fourth Amendment is concerned with “reasonable expecta- tions of privacy.” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); see Burger, 482 U.S. at 699-701. In the present context, the intrusion on an owner’s privacy expectations is no greater from the government’s seizure of commercial goods than from the government’s inspection of the same items. See Minnesota v. Dickerson, 508 U.S. 366, 377 (1993) (“The seizure of an item whose identity is already known occasions no further invasion of privacy”); see also Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 618 n.4 (1989) (“It is not necessary to our 7 analysis * * * to characterize the taking of * * * samples as a seizure * * *, for the privacy expectations protected by this characterization are adequately taken into account by our conclusion that such intrusions are searches”). 2. The in rem seizure of petitioner’s drugs did not violate the Fourth Amendment under the Colonnade- Biswell principles. Businesses engaged in the manu- facture, packaging and storage of human and animal drugs plainly are “closely regulated” within the meaning of the Colonnade-Biswell exception. United States v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532, 537 (8th Cir. 1981), cert. denied, 455 U.S. 1016 (1982). The FDCA, as well as the FDA’s regula- tions promulgated thereunder, regulate “virtually every phase of the drug industry * * * from packaging, labeling and certification of expiration dates, to prior FDA approval before new drugs can be marketed.” 651 F.2d at 537 (footnote omitted). See, e.g., 21 U.S.C. 351(a) (regulating manufacture), 21 U.S.C. 351(b) (regulating strength and purity), 21 U.S.C. 352(a), (b), (f), (g), (h) and (p) (packaging and labeling), 21 U.S.C. 355 (new drug approvals); 360b ! Of course, a seizure affects a claimant’s possessory inter- ests in a way that an inspection does not. See Horton v. California, 496 U.S. 128, 133 (1990). But a claimant’s posses- sory interests in alleged contraband do not override the public’s interest in having potentially hazardous or ineffective drugs removed temporarily from the stream of commerce. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 601 (1950). And the claimant is fully protected against being per- manently dispossessed of its goods by the statutori)y-protected opportunity to contest the government’s action for’ permanent forfeiture. See 21 U.S.C. 334; Admiralty Suppl. R. C; Ewing, 339 U.S. at 598. 8 (new animal drug approvals); 21 C.F.R. Pts. 200-599. As a company engaged in the manufacture, packaging and storage of veterinary drugs, petitioner operates in a business long subject to pervasive and comprehensive government regulation. Pet. App. A7- A8 & n.3 There can also be little doubt that the regulatory scheme governing the drug industry furthers a sub- stantial government interest. See Burger, 482 U.S. at 702. Drugs intended to treat diseases in human beings that are manufactured, packaged or stored without proper safeguards pose an obvious health and safety risk to those who use them, for in the absence of compliance with regulatory standards, there can be no assurance that the drug is safe for its intended use, or “has the identity and strength, and meets the quality and purity characteristics, which it purports or is represented to possess.” 21 U.S.C. 351(a)(2)(B). The government similarly has a substantial interest in the safety and effectiveness of animal drugs since unsafe or ineffective animal drugs pose a serious risk to the health and safety of the animals for whom they are prescribed. Indeed, unsafe or ineffective animal drugs may pose a significant risk to human health, when the diseases for which they are prescribed affect animals destined for human consumption. See United States v. 9/1 KG Containers, 854 F.2d 173, 174 (7th Cir. 1988), cert. denied, 489 U.S. 1010 (1989). In short, as the court of appeals concluded, whether the government’s interest in the safety and effectiveness of animal drugs “is human health, economic health, or beth * * * it is substantial.” Pet. App. A8. The authority to seize adulterated goods without a judicial warrant is also a necessary aspect of the regulatory scheme governing the preparation, pack- 9 aging and storage of human and animal drugs. See Burger, 482 U.S. at 709-710. A drug that has been im- properly manufactured, packaged, or stored, or as to which there is no documentation that regulatory standards have been followed, poses an obvious risk to the physical—and economic—health and safety of those who would use it. Eliminating that threat is not simply a matter of determining that a regulatory violation has occurred, and imposing a penalty or other sanction on the manufacturer. To eliminate the threat to the public the offending drugs must be removed from the marketplace. See Pet. App. Ag. Drugs are easily sold, and there may be few means—- apart from strict compliance with the FDCA’s re- quirements—for a consumer to know whether the drug he or she has purchased is safe and effective for its intended use. See United States v. Dotterweich, 320 U.S. 277, 285 (1943). Finally, the FDCA and the Supplemental Rules provide a “constitutionally adequate substitute for a warrant.” Burger, 482 U.S. at 711. See Pet. App. A9. The FDCA expressly informs those who manufac- ture, package or store human or animal drugs that adulterated or misbranded drugs “shall be liable to be proceeded against * * * on libel of information and condemned” in federal district court, 21 U.S.C. 334(a)(1), in accordance with procedures that “con- form, as nearly as may be, to the procedure in admi- ralty.” 21 U.S.C. 334(b). Thus, petitioner could not “help but be aware” that its drugs would be subject to seizure if they proved adulterated. Dewey, 452 U.S. at 600; see also Skinner, 489 U.S. at 622. The FDCA also “narrowly define[s]” the scope of the seizures it authorizes. See Burger, 482 U.S. at 711. Government officials are empowered to seize only those drugs that 10 are “adulterated or misbranded,” 21 U.S.C. 334(a)(1), terms that the statute defines in detail. See, e.g., 21 U.S.C. 351, 352. Moreover, consistent with the Fourth Amendment’s admonition that “the persons or things to be seized” must be “particularly described,” U.S. Const. Amend. IV, the Supplemental Rules require that the complaint that commences an action to enforce a forfeiture for federal statutory violations “shall describe with reasonable particularity the property that is the subject of the action and state that it is within the district or will be during the pendency of the action,” as well as stating “the place of seizure.” Admiralty Suppl. R. C(2).? Like the Fourth Amendment, moreover, the Supplemental Rules provide that the government’s complaint for forfeiture “shall be verified on oath or solemn affirma- tion.” Ibid. Finally, a decision to commence a forfei- ture action is not lightly undertaken. As the court of appeals recognized, in most cases one of FDA’s 21 district offices, the appropriate FDA Center in head- quarters, the agency’s Office of Enforcement, as well as the Office of Chief Counsel and the Department of Justice all review the merits of a case before a seizure is recommended. Pet. App. A9-Al0 (citing FDA Regulatory Practices Manual, Ch. 6, at 173-185 (Aug. 1995)). See Ewing, 339 U.S. at 599. “The discretion of Government officials to determine what” items to seize “is thus directly curtailed by the regulatory scheme.” Dewey, 452 U.S. at 605; see also National 2 See also Admiralty Suppl. R. E(2)(a) (requiring the complaint to “state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a respon- sive pleading”). 1] Treasury Employees Union v. Von Raab, 489 U.S. 656, 667 (1989). 3. Petitioner does not dispute that it engages in a business that is so closely and comprehensively regu- lated by the federal government as to fall within the Colonnade-Biswell exception. Nor does petitioner assert that the warrantless inspections of its prop- erty violated the Constitution or that the govern- ment’s actions in obtaining an in rem arrest warrant were unauthorized by the FDCA. Petitioner’s sole argument is that the government’s use of the FDCA’s in rem arrest procedures in this case violated the Fourth Amendment because, in its view of the cir- cumstances of this particular case, those procedures were not “necessary” to advance the government’s interests, under the FDCA, because government offi- cials “waited 94 days” after the last regulatory in- spection before seizing petitioner’s drugs. Pet. 7. The length of time elapsed between inspection and seizure in a particular case is, however, irrelevant to the issue of whether the government’s actions are protected by the Colonnade-Biswell exception. “If a random, unannounced inspection does not violate [petitioner’s] Fourth Amendment right of privacy,” there is “no reason why the unannounced execution of a warrant under the Supplemental Rules would do so.” Pet. App. Al3. Nor is there reason to adopt a rule that would have the constitutional inquiry turn on a case-by-case analysis of whether federal officials will be able to obtain a judicial warrant without un- dermining administrative enforcement. Petitioner is willing to assume that “the regulatory inspections may have been necessary to further the regulatory scheme.” Pet. 7 (emphasis added). Since this Court’s decisions make clear that the government can seize 12 contraband discovered in the course of such inspec- tions, see Colonnade, 397 U.S. at 72; Biswell, 406 U.S. at 312, there is no basis on which to conclude that a seizure subsequent to a warrantless inspection invades Fourth Amendment interests in a manner different from a seizure contemporaneous with a warrantless inspection. Compare United States v. Jacobsen, 466 U.S. 109, 120-121 (1984) (seizure of contraband by law enforcement was reasonable where prior to that seizure the owner’s “privacy interest * * * had been largely compromised” by a private search); United States v. Edwards, 415 U.S. 800, 806- 807 (1974). In short, as the court of appeals stated, there is no need to require the government “to bri- gade the seizure with an inspection in order to legiti- mize it.” Pet. App. A13. Petitioner also suggests that the subsequent sei- zure was unreasonable because it was “particular- ized.” See Pet. 7,9. But the fact that the government has identified specific items subject to seizure limits, rather than magnifies, the intrusion on petitioner’s Fourth Amendment privacy expectations. Moreover, petitioner’s suggestion is inconsistent with Biswell, which upheld the seizure of specific firearms dis- covered as the result of a warrantless government inspection. Biswell, 406 U.S. at 312-313. Indeed, it would be odd to conclude that the government does not need a judicial warrant to enter into and inspect a regulated commercial establishment when it has no particular reason to suspect noncompliance with regulatory ebligations, but that it must obtain such a warrant when, as here, it has information that spe- cific items are being held in violation of regulatory requirements—especially in light of the Fourth Amendment’s stated preference for particularity in 13 government searches and seizures. U.S. Const. Amend. IV. 4. Petitioner also contends (Pet. 11-12) that the decision below conflicts with the Tenth Circuit’s reasoning in Winters v. Board of County Commis- stoners, 4 F.3d 848 (1993), cert. denied, 114 S. Ct. 1539 (1994), which invalidated a police seizure of a stolen ring from an Oklahoma pawn shop. The Winters court, however, based its decision on its conclusion that the seizure of the ring was the_result of “pretextual” inspection of the shop, which failed to give the police “a lawful right of access” to the seized property. 4 F.3d at 854; compare Burger, 482 U.S. at 717 n.27. In this case, by contrast, it is undisputed that the seizure of petitioner’s drugs resulted from a lawful administrative search of petitioner’s premises, pur- suant to the FDCA and the Supplemental Rules, which—unlike the Oklahoma statute in Winters— expressly authorize seizures of adulterated drugs without a judicial warrant. See 21 U.S.C. 334. In addition, the consequences from the delayed seizure of a ring are, to say the least, decidedly different from those presented by the failure to seize drugs that may be unfit or unsafe for their intended use.* Petitioner also contends that the decision of the court of appeals conflicts with its prior decision in % The concerns expressed by the Tenth Circuit in S & S Pawn Shop, Inc. v. City of Del City, 947 F.2d 432, 441 (1991) (see Pet. 11)—a decision that actually upheld the facial con- stitutionality of the Oklahoma pawnshop inspection scheme— similarly related to allegations that specific pawnshop in- spections “were conducted not as part of a pre-planned and dispassionate administrative procedure but instead pursuant to direct criminal suspicion.” 14 United States v. Device, Labeled “Theramatic”, 641 F.2d 1289 (9th Cir. 1981) (Theramatic I, which invali- dated the warrantless seizure of an allegedly mis- branded medical device from a doctor’s office under the FDCA. As the court of appeals explained, how- ever, the seizure in Theramatic I “was effectuated by an impermissible invasion of the * * * right of privacy” of a physician whose business (unlike that of petitioner) was “not closely regulated by the FDA”; thus “(t]he Colonnade-Biswell exception did not apply” at all. Pet. App. All-Al2. And even if there were an intracircuit conflict within the Ninth Cir- cuit, the matter would be more appropriate for the court of appeals, rather than for this Court, to re- solve. See Wisniewski v. United States, 353 U.S. 901, 902 (1957). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General DOUGLAS N. LETTER JACOB M, LEWIS Attorneys FEBRUARY 1997 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1790%3A2. Public record. Not legal advice.