COMMENTS
PRODUCT SEIZURES BY THE
FEDERAL GOVERNMENT:
PROCEDURALLY UNCONSTITUTIONAL?
INTRODUCTION
Congress has enacted a number of statutes to protect the consumer
from dangerous or mislabeled products. 1 These statutes, covering a
broad range of items, 2 authorize federal administrative agencies to set
and enforce standards for products that they regulate. In addition to
enforcement by criminal prosecution and injunction, 3 many statutes
provide for the seizure of allegedly offending products, without prior
hearing. 4 Summary action is justified by the government's need to
act expeditiously in preventing the distribution in commerce of potentially harmful items, such as spoiled food, flammable fabrics,
hazardous toys, and adulterated drugs. 5 A preseizure hearing would
1. E.g., Consumer Product Safety Act, 5 U.S.C. §§ 5314, 5315; 15 U.S.C. §§ 2051-2081
(1976); Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 135-136y (1976);
Poison Prevention Packaging Act of 1970, 7 U.S.C. § 135; 15 U.S.C. §§ 1261, 1471-1476; 21
U.S.C. §§ 343, 352-353, 362 (1976); Federal Seed Act, 7 U.S.C. §§ 1551-1611 (1976); Egg
Products Inspection Act, 15 U.S.C. §§ 633, 636; 21 U.S.C. §§ 1031-1056 (1976); Flammable
Fabrics Act, 15 U.S.C. §§ 1191-1204 (1976); Federal Hazardous Substances Act, 15 U.S.C. §§
1261-1274 (1976); Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629 (1976); Wholesome
Meat Act, 19 U.S.C. § 1306; 21 U.S.C. §§ 601-624, 641-645, 672-680, 691 (1976); Wholesome
Poultry Products Act, 21 U.S.C. §§ 451-461, 463-465, 467, 467a-467f, 470 (1976).
2. The range of items regulated by just one statute, the Consumer Products Safety Act, 15
U.S.C. §§ 2051-2081 (1976), is illustrated by the Act's definition of "consumer product"
to encompass any article, or component part thereof, produced or distributed (i) for
sale to a consumer for use in or around a permanent or temporary household, or
residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary
household or residence, a school, in recreation, or otherwise ....
Id. § 2052. The term "consumer product" excludes certain items that are covered under other
product-regulatory statutes. For example, food as defined in § 201(o of the Federal Food, Drug,
and Cosmetic Act, 21 U.S.C. § 321(o (1976), is excluded.
3. See note 41 infra.
4. The following statutes contain seizure provisions: Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. § 136k(b) (1976); Federal Seed Act, 7 U.S.C. § 1959 (1979); Flammable Fabrics Act, 15 U.S.C. § 119(b) (1976); Federal Hazardous Substances Act, 15 U.S.C. §
1265 (1976); Consumer Product Safety Act, 15 U.S.C. §§ 2061(b)(2), 2071(b) (1976); Toxic Substances Control Act, 15 U.S.C. § 2616(b) (1976); Federal Food, Drug, and Cosmetic Act, 21
U.S.C. § 334 (1976); Wholesome Poultry Products Act, 21 U.S.C. § 467b (1976); Wholesome
Meat Act, 21 U.S.C. § 673 (1976); Egg Products Inspection Act, 21 U.S.C. § 1049 (1976).
5. The federal government is authorized to take summary action in numerous other contexts. See, e.g., Home Owner's Loan Act of 1933, 12 U.S.C. § 1464(d) (1976) (Federal Home
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delay seizure and substantially diminish the protection afforded to the
public, thus thwarting the public policy underlying these regulatory
schemes.
Although the elimination of a prior adversary hearing facilitates
governmental action in emergency situations, it also eliminates the
most effective means to test the factual basis of a proposed seizure.
Thus, the owner of goods against whom summary action is to be
taken has no judicially administered preseizure safeguard against arbitrary and mistaken exercises of summary authority. 6 In light of the
harsh consequences of summary seizure, 7 the question is raised
whether present procedures ensure that the seizure of suspect goods
is being carried out in a constitutionally acceptable manner by
minimizing the risk of error.
The procedures to which the government must adhere once a federal agency has recommended the initiation of a seizure action 8 are
governed by the Supplemental Rules for Certain Admiralty and
Maritime Claims. 9 These rules, in their usual context, are designed
Loan Bank Board has summary authority to appoint conservator or receiver for banks with
precarious financial structures); I.R.C. § 6861 (Commissioner of Internal Revenue may summarily impose jeopardy assessment); Natural Gas Act, 15 U.S.C. § 717c(e) (1976) (Federal Power
Commission may summarily suspend proposed rates pending hearing); Federal Power Act, 16
U.S.C. § 824(e) (1976) (Federal Power Commission has power to suspend new rates pending
hearing); Interstate Commerce Act, 49 U.S.C. §§ 15(7), 316(g), 318(c), 907(g), 1006(e) (1976)
(Interstate Commerce Commission has power to suspend summarily effective date of proposed
tariff schedules submitted by carriers).
For an examination of the performance of the federal administrative agencies in their exercise
of summary authority, and an analysis of proposals for the improvement of such performance,
see Freedman, Summary Action by Administrative Agencies, 40 U. CHi. L. REv. 1, 26-65
(1972).
6. Freedman, supra note 5, at 2.
7. See, e.g., the testimony of John Davis, III, Senior Vice President, Salem Carpet Mill,
Inc., in support of a motion for a preliminary injunction to prevent seizure of carpeting by the
Consumer Product Safety Commission (CPSC).
Q If your inventories located at your distribution centers around the country or at
your mill were to be seized by the government, or if they were to be restrained
from sale and there was publicity about such an activity, do you think it would
damage the goodwill of your company?
A ... I could talk about that for about an hour. I wish I could tell you how much
damage it would do. It would be irreparable damage. Everybody in the United
States-there are only two or three trade journals in the United States for the
carpet industry. Every retailer reads them, because there are only two or three of
them. If it hits the trade media, I promise you, every retailer in the country Is
going to know about it, and it's something you can't retract. It's going to be blown
out of proportion, so it's going to hurt us, no question.
Record of Hearing on Motion for Preliminary Injunction at 43-44, Salem Carpet Mills, Inc. v.
Consumer Product Safety Commission, Civ. No. 78-142R (N.D. Ga. Sept. 22, 1978).
8. See notes 42-50 & accompanying text infra.
9. FED. R. Civ. P., Supp. C.
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PRODUCT SEIZURES
to facilitate resolution of admiralty claims between private parties. Although the constitutionality of the Admiralty Rules has been challenged, 1 0 there are mitigating factors in the maritime setting that appear to provide adequate safeguards against arbitrary and mistaken
deprivations of property." These attributes of maritime practice that
serve to reduce the possibility of irreparable harm to a maritime defendant have no counterpart in product seizure practice under the
same rules. 12
This comment first examines the role of the Admiralty Rules in
maritime practice and their application to product safety enforcement
in order to highlight the differences in purpose and effect between
seizures in the two contexts. It then analyzes whether the fourth
amendment, 13 with its full panoply of procedural safeguards, is
applicable to product seizures. The propriety of imposing the fourth
amendment's warrant clause is examined in light of the specification
in the rules that seizures be effected pursuant to a warrant of arrest, 14 and the Supreme Court's determination that fourth amendment procedural safeguards apply to administrative searches. 15 The
requirements of due process that should be accorded claimants in seizure actions is then analyzed in light of the expansion of the concept
of procedural due process. 16 Finally, this comment concludes that
because of the risk of arbitrary and mistaken deprivation of property
in product seizures, the Admiralty Rules should be amended, insofar
as they apply to product seizures, to incorporate the procedural protections of the fourth and fifth amendments, specifically a finding of
probable cause by a neutral judicial officer prior to issuance of a warrant and a prompt postseizure hearing.
I.
THE OPERATION OF THE ADMIRALTY RULES IN PRACTICE
The procedures governing the seizure of products violative of federal regulatory statutes conform, "as nearly as may be," to procedures
10. See notes 31-32 & accompanying text infra.
11. See notes 27-30 & accompanying text infra.
12. See notes 33-39 & accompanying text infra.
13. U.S. CONST. amend. IV. "[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."
14. FED. R. Civ. P., Supp. C(3). Supplemental Rule C(3) provides in part: "Upon the filing
of the complaint the clerk shall forthwith issue a warrant for the arrest of the vessel or other
property that is the subject of the action and deliver it to the marshal for service ..
15. See notes 65-76 & accompanying text infra.
16. U.S. CONST. amend. V. "No person shall be ... deprived of life, liberty, or property,
without due process of law."
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in admiralty. 17 At present, the admiralty procedures set out in the
rules are being applied inflexibly to product seizures practice. Because the purpose and effect of maritime seizure differ significantly
from that of product seizure," 8 the strict application of the rules to
product seizure is unjustified. Moreover, there are factors present in
maritime practice that mitigate the potentially harsh effects of the
rules upon the parties involved, and thus, may enable the rules to
surmount a constitutional attack in that context. 19 These same
mitigating factors, however, are notably absent in product seizure
practice under the same rules. 20
A. Admiralty Procedures
Admiralty jurisprudence deals with circumstances generally different from those of the common law. 21 The courts have viewed actions in rem and in personam2 2 as useful and necessary remedies be17. Although the legislative histories of product-regulatory statutes providing for seizure are
silent as to the congressional intent in making the proceedings conform to those in admiralty,
historically, Congress has directed that statutory jurisdiction over seizures on land for forfeiture
or condemnation be exercised in "the form and modes analogous to those used in admiralty."
Union Ins. Co. v. United States, 73 U.S. (6 wall.) 759, 764 (1867). An early example is the
Confiscation Act of July 17, 1862, ch. 195, § 7, 12 Stat. 591, which provided that all property of
any person engaged in rebellion or insurrection against the United States was subject to confiscation in proceedings that "shall conform as nearly as may be to proceedings in admiralty or
revenue cases ....
" Furthermore, Congress has enacted a catch-all statute that states that
unless an Act of Congress provides otherwise, whenever a statutory penalty prescribes a forfeiture in cases of seizures on land, the proceedings "shall conform as near as may be to proceedings in admiralty." 28 U.S.C. § 2461(b) (1978).
English Law provided for statutory forfeitures of property in satisfaction of obligations owed
the Crown, most commonly due to violations of customs and revenue laws. These forfeitures
were usually enforced under the in rem procedure of the Court of Exchequer to forfeit property
of felons. See 3 W. BLACKSTONE, COMMENTARIES * 261-62. As the Supreme Court noted in
C.J. Hendnj Co. v. Moore, "[long before the adoption of the Constitution the common law
courts in the Colonies- and later in the states during the period of Confederationwere
exercising jurisdiction in rem in the enforcement of [English and local] forfeiture statutes." 318
U.S. 133, 139 (1943).
18. See notes 33-39 & accompanying text infra.
19. See notes 27-30, 32 & accompanying text infra.
20. See notes 33-39 & accompanying text infra.
21. "Courts of admiralty are established for the settlement of disputes between persons
engaged in commerce and navigation, who, on the one hand, may be absent from their homes
for long periods of time, and, on the other hand, often have property or credits in other
places." In re Louisville Underwriters, 134 U.S. 488, 493 (1890).
22. In an action in rem the plaintiff arrests maritime property, usually a ship, in order to
secure property from which a judgment can be satisfied. FED. R. Civ. P., Supp. C. See Canadian Aviator Ltd. v. United States, 324 U.S. 215, 224 (1945); Krauss Bros. Lumber Co. v.
Dimon S.S. Corp., 290 U.S. 117, 121, 125 (1933). In an action in personam the plaintiff attaches the property in order to force the defendant into the jurisdiction for legal proceedings.
FED. R. Civ. P., Supp. B. See Swift & Co. Packers v. Compania Columbiana del Caribe,
1979]
PRODUCT SEIZURES
cause of the transient nature of maritime commerce and the consequent need for prompt action. 2 3 The rules governing admiralty
arrest and attachment procedures reflect this need. 24 They permit
the clerk of the district court to issue a warrant for the arrest or
attachment of property without giving the owner prior notice or an
opportunity to be heard. 2 5 The clerk is required, upon the mere
filing of the complaint, to issue the warrant without any consideration
of probable cause. 26 Furthermore, the rules do not require posting
of bond to protect the property owner should the plaintiff fail on the
merits.
In practice, however, the owner almost always receives prompt
notice of the seizure. 27 He can arrange for the release of the property by posting a bond, a letter of credit, or similar security. 28 This
guaranteed right to obtain prompt release of the maritime res sig-
S.A., 339 U.S. 684, 693 (1950); In re Louisville Underwriters, 134 U.S. 488, 493 (1889); Atkins
v. Disintegrating Co., 85 U.S. (18 Wall.) 272 (1873).
23. See, e.g., Grand Bahama Pet. Co. v. Canadian Transp. Agencies, 450 F. Supp. 328, 332
(D. Md. 1977) (dicta). In fact, the trend in admiralty has been to strengthen traditional remedies against property. See Maritime Lien Act, Pub. L. No. 92-79, 85 Stat. 285 (1971)
(amending 46 U.S.C. § 973 (1920)), construed in Lake Union Drydock Co. v. MN Polar Viking,
446 F. Supp. 1286, 1289-91 (W.D. Wash. 1978).
24. See McCreary, Going for the Jugular Vein: Arrests and Attachments in Admiralty, 28
OHIO ST. L.J. 19 (1967) (detailing the legal and practical aspects of admiralty seizures in rem
and attachments in personam). Authority for these procedures is viewed as based either upon
the Supreme Court's rulemaking power, or upon the constitutional grant of admiralty jurisdiction to the federal government as implemented by statute. Id. at 21 n.13.
25. FED. R. Civ. P., Supp. B & C.
26. Id. Supp. B(1) & C(3).
27. The Committee on Practice and Procedure of the Maritime Law Association of the
United States recently reported on the operation of the Admiralty Rules in practice:
We have been impressed by accounts from the many districts represented in the
Committee and otherwise heard from as to the satisfactory operation of the rules in
practice. These accounts have emphasized:
1. the practice of identifying local representatives of the defendant and advising
them in advance, in order to avoid actual arrest or attachment, when time and
circumstances permit;
2. the great number of cases in which no actual arrest or attachment occurs because
security in some form is put up;
3. the great number of those cases in which the security put up is in the form of
the traditional underwriteFs letter of guarantee rather than a bond; and
4. the availability and willingness of judges to hold prompt post-arrest/attachment
hearings on request and examine the propriety of arrest, attachment or security.
COMMIrrEE ON PRACTICE AND PROCEDURE, MARITIME LAV Ass'N, SECOND SPECIAL REPORT
ON THE ADMIRALTY ARREST AND ATTACHMENT RULES
6782-83 (Nov. 2, 1977) [hereinafter cited
as COMMITrEE ON PRACTICE AND PROCEDURE].
28. FED. R. Civ. P., Supp. E(5). See COMIMITTEE ON PRACTICE AND PROCEDURE, supra
note 27, at 6782-83.
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nificantly tempers the harshness of unilateral seizure without notice
or hearing. Furthermore, actual arrest or attachment often is averted
by the practice of identifiying local representatives of the defendant
and advising them in advance of the impending seizure, thus permitting the preseizure posting of bond. 29 If a defendant's property is
arrested or attached, he generally can request and obtain a prompt
postseizure hearing at which a judge will examine the propriety of the
arrest, attachment, or security. 30 Despite these mitigating factors,
the constitutionality of the procedures prescribed by the Admiralty
Rules for maritime practice is uncertain. At least one court has held
the procedure for maritime attachment and garnishment unconstitutional; 31 another court has twice sidestepped the issue. 32
29. COMMITTEE ON PRACTICE AND PROCEDURE, supra note 27, at 6782-83.
30. Id. at 6783. The Committee on Practice and Procedure concluded that "the present
arrest and attachment rules operate fairly and efficiently to all parties in the overwhelming
majority of cases and do not afford a basis for constitutional attack." Id. The committee did
suggest, however, that the rules be amended to include an explicit provision that affords the
defendant or claimant an immediate opportunity to vacate the arrest or attachment upon a
showing of any improper practice or manifest want of equity on the part of the plaintiff. Id.
31. Grand Bahama Pet. Co. v. Canadian Transp. Agencies, 450 F. Supp. 447 (W.D. Wash.
1978). In this decision, the court first dispensed with the contention that, as a federal district
court, it lacked the power to declare a rule of the Supreme Court unconstitutional. It concluded
that the Supreme Court acts only in an administrative capacity, not a judicial capacity, when
engaged in rulemaking. 450 F. Supp. at 450. The rules that the Court had before it " 'are the
work of very capable advisory committees. Those committees, not the Court, wrote the rules.' "
Id. (quoting Order of the Supreme Court of Feb. 28, 1966, promulgating Federal Rules of Civil
Procedure (Dissenting Statement of Mr. Justice Black)). Furthermore, the court noted that the
Supreme Court itself has recognized that it would be impossible for its members to anticipate
every constitutional objection. "'The fact that this Court promulgated the rules as formulated
and recommended by the Advisory Committee does not foreclose consideration of their validity,
meaning or consistency.' " Id. (quoting Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 444
(1946)). Finally, the court reasoned that the rules were promulgated under powers delegated by
Congress; therefore, the Supreme Court could not exceed the rulemaking power which Congress rightfully could have exercised. Id.
In addressing the constitutional question in Grand Bahama, the court upheld maritime attachment and arrest as useful and necessary remedies in admiralty law, but distinguished the
remedies from the procedures employed to effect them. 450 F. Supp. at 459-60. After weighing
the competing interests at stake, the court concluded that summary seizure of a maritime defendant's property was not justified by the plaintiffs need for prompt action, especially in view
of the defendant's interest in avoiding mistaken deprivation. Id. at 458. This holding was based
on the belief that procedural due process is intended primarily to protect the interests of the
person whose property is about to be taken; it is " 'not intended to promote efficiency or to
accommodate all possible interests ......
Id. (quoting Fuentes v. Shevin, 407 U.S. 76, 90
n.22 (1972)).
The court in Grand Bahama had under consideration only Rule B(1) governing maritime
attachment and garnishment, both of which are actions in personam. The court expressly declined to apply its conclusions of unconstitutionality to Rule C which governs actions in rem
such as product seizures. Id. at 460 n.85. In view of the decision in Shaffer v. Heitner, 433
U.S. 186 (1977), however, the district court's holding as to Rule B should be fully applicable to
Rule C.
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PRODUCT SEIZURES
B. Product Seizures
1. Differences between admiralty and product seizures
Admiralty seizure rules were designed for use in a maritime setting; their wholesale application to product seizures, however, is unjustified because of the significant differences between the two acIn Shaffer, the Supreme Court rejected the contention that a proceeding against property is
not a proceeding against the owner. An adverse judgment in rem directly affects the property
owner's interest by divesting him of his right to the property. In a footnote, the Court quoted
from Tyler v. Court of Registration, 175 Mass. 71, 76, 55 N.E. 812, 814 (Holmes, C.J.), appeal
dismissed, 179 U.S. 405 (1900): " 'All proceedings, like all rights, are really against persons.
Whether they are proceedings or rights in rem depends on the number of persons affected.'"
Shaffer v. Heitner, 433 U.S. at 207 n.22.
Although the district court in Grand Bahama held that the procedure prescribed by Rule B(1)
was unconstitutional only because it was insufficient to protect defendants from mistaken deprivation of property, Judge Beeks did suggest alternative procedures that would bring the rule
within constitutional mandates. Grand Bahama Pet. Co. v. Canadian Transp. Agencies, 450 F.
Supp. at 459 n.84. He recommended incorporation of the proposed amendment of amicus
curiae Maritime Law Association. Id. Pursuant to this amendment, a defendant would have an
immediate opportunity to vacate an attachment by securing a show cause order against the
plaintiff. COMMITTEE. ON PRACTICE AND PROCEDURE, supra note 27, at 6783-84. This, together
with the additional requirement of judicial participation in the issuance of the writ, he believed,
would cure the constitutional infirmity. 450 F. Supp. at 459 n.84.
As to the nature of judicial participation, Judge Beeks suggested that:
A formal hearing is probably unnecessary. Given the transitory nature of maritime
property and the necessity for prompt action, the writ could issue ex-parte by convincing the court, even by a showing based on reliable hearsay testimony, that
reasonable cause exists for the issuance of the writ. The party seeking the writ
should at least be required to show that a maritime debt probably exists ....
Mere
conclusory allegations should not suffice.
Id. Mr. Richard Jackson, a member of the Committee on Practice and Procedure of the
Maritime Law Association, in his lone dissent to the committee's report, see note 27 supra,
observed that reliance on local practices to read due process into the rules might be misplaced.
COMMITTEE ON PRACTICE AND PROCEDURE, MAJUTiaE LAW AssN., MINORITY REPORT ON
THE ADMIRALTY ARREST AND ATTACHMENT RULEs 6786-89 (Nov. 1, 1977) [hereinafter cited as
MINORITY REPORT]. Even where local practice provided for access to a judge, see, e.g., Amstar
Corp. v. MV Alexandros T., 431 F. Supp. 328 (D. Md. 1977), the judge would still have
discretion to decide whether an immediate hearing was necessary, and if so, what
standards should be applied. Most likely, the burden would have been on the defendant in such a hearing to show wrongful or arbitrary deprivation of its property,
a far cry from the Louisiana procedure [in Mitchell v. W.T. Grant Co., 416 U.S.
600 (1970)] ....
[Tihere is not reason to believe that similar savings rules will
apply in all other jurisdictions. Moreover, for the sake of uniformity, even where
local rules may suffice, it is surely better to have one nationwide standard, adopted
in the Admiralty Rules, which gives shipowners a right to an immediate and meaningful post-seizure hearing.
MINORITY REPORT, supra, at 6789.
For an article questioning the constitutionality of the Admiralty Rules, in admiralty practice,
see Morse, The Conflict Between the Supreme Court Admiralty Rules and Sniadach-Fuentes: A
Collision Course?, 3 FLA. ST. U.L. REv. 1 (1975).
32. E.g., Amstar Corp. v. M/V Alexandros T., 431 F. Supp. 328 (D. Md. 1977) (local practice provided for immediate hearing where substantial rights are claimed to be infringed);
Techem Chem. Co. v. M/T Choyo Maru, 416 F. Supp. 960, 970 (D. Md. 1976) (defects in
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tions. First, the purposes underlying each action are totally dissimilar. In admiralty, the res generally serves as collateral pending the
resolution of a dispute between the plaintiff and the defendant; it
merely assures that the plaintiff will be able to collect on a judgment
if he prevails in court.33 In product seizures, however, the suspect
goods are regarded as contraband, to be removed from the stream of
commerce. 3 4 Second, factors that mitigate the harsh results of seizures in admiralty have no counterparts in product seizures. The
owner in the latter situation cannot prevent seizure or obtain immediate release of his products by substituting a bond. Third, the
nature of the objects seized differs in the two contexts. In admiralty,
the plaintiff usually attaches or arrests the defendant's ship. 5 The
vessel itself is not damaged; it is merely prohibited from leaving its
berth until bond is posted or the underlying dispute is resolved. In
product seizures, however, delay in the shipment of perishable goods
may result in their unsuitability for sale. Market changes or adverse
publicity may seriously reduce the value of nonperishable items. Irreparable harm to the owner is a likely consequence. 36 Fourth, the
character of the litigants involved in a maritime seizure is different
from that of the litigants in product seizure. In the former, the parties are two private persons; the government merely places its judicial
machinery at the disposal of one to ensure that the underlying dispute can be resolved. In product seizures, however, the government
is the complainant. 3 7 Because the Bill of Rights is, on its face, a
original complaint entitled shipowner "to equitable relief substantially as satisfactory as the relief
to which it would be entitled if the process were declared to be unconstitutional.").
33. Swift & Co. Packers v. Compania Columbiana del Caribe, S.A., 339 U.S. 684, 693
(1950).
34. See Fettig Canning Co. v. Steckler, 188 F.2d 715, 717 (7th Cir.), cert. denied, 341 U.S.
951 (1951).
35. Publicly owned vessels, when owned by a friendly nation, however, are immune from
seizure. Compania Espanola de Navigacion Maritima, S.A. v. The Navemar, 303 U.S. 68 (1938).
Cargo has also been regarded as subject to arrest or attachment. See 4885 Bags of Linseed, 66
U.S. (1 Black) 108 (1861). Real property of the defendant, however, may be neither arrested nor
attached. See Miller v. United States, 78 U.S. (11 Wall.) 268 (1870); The Rock Island Bridge, 73
U.S. (16 Wall.) 213, 216 (1867); Harriman v. Rockaway Beach Pier Co., 5 F. 461 (E.D.N.Y.
1880).
36. See note 50 & accompanying text infra.
37. See notes 40-42 & accompanying text infra. Confiscation of private property may be
deemed an exercise of the legitimate police power of the state and, therefore, not a taking
requiring compensation under the fifth amendment. See Standard Oil Co. v. City of Marysville,
279 U.S. 582, 584 (1929); Zahn v. Board of Pub. Works, 274 U.S. 325, 328 (1927); Euclid v.
Ambler Realty Co., 274 U.S. 365, 388 (1927); Jacobson v. Massachusetts, 197 U.S. 11, 30
(1905).
1979]
PRODUCT SEIZURES
constraint on the federal government, 3 8 direct action in product seizures may require more stringent procedural safeguards than courts
have found necessary when the government acts for a private litigant
in admiralty. The failure to consider these substantial differences between product and maritime seizures has resulted, therefore, in less
protection being afforded to claimants in product seizures. 39
2. Preseizure procedures
In addition to the differences between admiralty and product seizures, the procedures followed by the government in the latter situation raise serious questions. When the compliance staff of an agency
charged with regulation of a particular product discovers, as a result
of inspection and laboratory analysis, that a product fails to conform
to the law, it may recommend that the offending articles be
seized. 40 Because the power to act summarily is so drastic and sensi-
38. See L. TRIBE, AMERICAN CONSTITUTIONAL LAW 3-4, 1147 n.1 (1978).
39. Although the owner of a seized product appears to receive more protection than his
maritime counterpart because of the agency investigation and review that takes place prior to
product seizure, see notes 42-47 & accompanying text infra, the decision to seize a product may
not always be based on adequate information. See, e.g., Nor-Am Agriculture Prods., Inc. v.
Hardin, 435 F.2d 1151, rev'g on rehearingen banc, 435 F.2d 1133 (7th Cir. 1970), cert. dismissed, 402 U.S. 935 (1971). Judge Pell, in a strong dissent, pointed out the increased risk of
arbitrary action and the greater likelihood of error, when an agency acts on the basis of uninvestigated and undocumented allegations. Id. at 1164. He concluded that the summary suspension
of the sale of a fungicide as a commercial poison, pending a hearing on the permanent cancellation of the manufacturing license, was arbitrary and capricious. Id. at 1161-62. The suspension
occurred the day after a national news program reported an incident in which three children
had been "rendered virtually vegetables" due to mercury poisoning allegedly caused by the
particular fungicide. Id. at 1162.
As one commentator has observed, the injury inflicted by summary action is especially significant because, "in the absence of an administrative hearing, the risk of error is probably
greater; the unfavorable publicity rests wholly on the agency's ex parte assertion; the order may
be broader than necessary; and judicial review is typically unavailable." Freedman, supra note
5, at 34.
40. The Supreme Court conceded that the legislature has the power to enact laws relating
to the public health in North American Cold Storage Co. v. Chicago, 211 U.S. 306 (1908). This
power devolved upon the legislature the discretion to seize and destroy unfit goods, in this case
allegedly unwholesome food, without any prior hearing.
The right to seize is based upon the right and duty of the State to protect and
guard, as far as possible, the lives and health of its inhabitants, and that it is proper
to provide that food which is unfit for human consumption should be summarily
seized and destroyed to prevent the danger which would arise from eating it.
Id.at 315.
The Court spoke in terms of an emergency that would necessitate summary destruction, but
left the questions of what an emergency is and when a prior hearing should be accorded the
claimant totally to the discretion of the legislature. Id. at 319-20. The Court based its ruling, at
least in part, on its belief that the owner or custodian of food is amply protected against mista-
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tive, however, an administrative agency may not take such action absent express statutory authorization. 41
A seizure recommendation may pass through multiple levels of review before a complaint is finally forwarded to the United States Attorney for filing, although the actual review process varies from
agency to agency and even within a single agency. 42 It may appear
ken seizures because the burden of proof rests on the party seizing the food, "who must in a
subsequent action against him show as a fact" that it was contaminated. Id. at 320. Yet in this
case, summary destruction meant all evidence of compliance or failure to comply had been
destroyed. Id. at 316. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599-600 (1950)
(expressing belief that Congress may extend control beyond summary destruction for protection
of public health; Congress may conclude that damage could result even from harmless articles
sold as cure-alls).
41. See Freedman, supra note 5, at 6-7. For an example of an explicit seizure provision, see
§ 304 of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 334 (1976), providing in part:
(a) (1) Any article of food, drug, or cosmetic that is adulterated or misbranded
when introduced into or while in interstate commerce . . . shall be liable to be
proceeded against . . . on libel of information and condemned in any district court
of the United States . . .within the jurisdiction of which the article is found ....
(b) The article, equipment, or other thing 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; except
that on demand of either party any issue of fact joined in any such case shall be
tried by jury.
Statutory alternatives to seizure include temporary restraining orders and preliminary injunctions to prevent the distribution of products. See, e.g., Food, Drug, and Cosmetic Act of 1938,
§ 303, 21 U.S.C. § 332 (1976). Although a preliminary injunction may not be as effective as
summary action in situations requiring immediate action, it nevertheless has the value of allowing the person whom the agency seeks to enjoin, the opportunity to contest the action before a
judge. Moreover, the party has the right to judicial review-a protection not always available In
summary action. Freedman, supra note 5, at 159-60. Thus, the preliminary injunction appears
to be the sounder route to follow in nonemergency situations, such as a decision to seize a
product after weeks-or months-of sampling, testing, and analyzing. Id. at 57-64.
Indeed, the Food and Drug Administration (FDA) suggests: "When submitting a seizure recommendation where there is evidence (or the likelihood) of repeated or continuing violations,
the District should consider whether the public could be better protected by simultaneous
Injunction or prosecution action." FOOD & DRUG ADMINISTRATION, REGULATORY PROCEDURES
MANUAL, § 8-20-10(F) General Guidance for Seizures (May 4, 1978). See Food, Drug, and
Cosmetic Act of 1938, § 303, 21 U.S.C. § 333 (1976) (authorizing criminal prosecution of violators of Act). Other agencies have similar powers. See, e.g., Federal Hazardous Substances Act,
15 U.S.C. § 1264 (1976) (Dept. of Health, Education, & Welfare).
42. At the FDA, for example, the District Compliance Officer has several options for proceeding once he has obtained the Home District's concurrence that a seizure recommendation
be submitted. FOOD & DRUG ADMINISTRATION, REGULATORY PROCEDURES MANUAL, § 8020-10(A) (May 4, 1978). Following the Administrative Guidelines and the Compliance Policy
Manual, the Compliance Officer may transmit the recommendation first to one of the FDA's six
bureaus-Foods, Drugs, Veterinary Medicine, Radiologic Health, Biologics, and Medical Devices and Diagnostic Products-or, he may bypass the appropriate bureau under certain clearly
defined circumstances and go directly to the Regulatory Management Staff or to the United
States Attorney. Id. § 80-20-20.
1979]
PRODUCT SEIZURES
from such a multitiered review process that there are adequate builtin safeguards against arbitrary and mistaken deprivation of property.
If the levels of review are mere rubber stamps of the initial recommendation, however, the risk of error escalates 43 and the appearance
of fair treatment to those regulated by the agency diminishes. 44 Relying exclusively on the internal mechanisms of an agency increases
the probability of a lack of objectivity because everyone involved in
the decisionmaking process has as his goal the promotion of the affirmative policies of the agency. 45
Error or prejudice that survives intra-agency review will not be
detected or corrected later in the preseizure process. When a complaint is filed with the clerk of the court, he automatically issues a
warrant for the arrest of the named product. 46 Even if a judge were
responsible for issuing the warrant, there would be no basis upon
which he could assess the validity of the seizure. The rules require
only that allegations in the complaint follow the words of the statute; 4 7 no affidavit detailing test results and conclusions derived
therefrom need be appended. Thus, the person whose goods are to
be seized is denied impartial consideration of the claim against him
before seizure.
By way of contrast, at the CPSC, the field office that coordinates the testing of a product may
recommend to the Regional Attorney, or to the Directorate for Compliance and Enforcement
directly, that a seizure be effected. If the recommendation is made to the Regional Attorney, he
need only contact the Directorate by telephone with his recommendation to get concurrence.
The Regional Attorney or the Directorate prepares the papers, which are transmitted to the
United States Attorney for filing. Telephone Interview with Robert G. Poth, Director of the
Division of Regulatory Management, Consumer Product Safety Commission (Oct. 26, 1978).
Unlike their counterparts in the FDA, the staff of the compliance sections of the CPSC are
attorneys. One source has suggested that this fact may account for the fewer levels of review to
which a seizure recommendation is subjected within the CPSC. Id.
43. St. Joseph Stock Yards v. United States, 298 U.S. 38, 84 (1936). Mr. Justice Brandeis
stated that "the supremacy of law demands that there shall be an opportunity to have some
court decide whether an erroneous rule of law was applied .... Id.
44. The imp-ortance of maintaining the appearance of justice has been noted in connection
with legislative, judicial, and executive concentration of functions within a single administrative
agency. B. SCHWARTZ, ADMINISTRATIVE LAw 319 (1976).
45. Id. at 306. Thus, an "agency cannot be expected to act with that 'cold neutrality of an
impartial judge' " when it is engaged in pursuing the policies that the agency was intended to
further. Id.
46. See FED. R. Civ. P., Supp. C(2).
47. When a seizure and condemnation proceeding is based upon a statute, it is sufficient if
the allegations of the complaint follow the wording of that statute. See id.; United States v.
Clarke, 87 U.S. 92 (1874). A clerk, therefore, may act on the conclusions of enforcement officials without supporting facts.
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Postseizure judicial review is limited as well because only a small
percentage of summary seizures are contested on the merits in subsequent condemnation proceedings. 48 In many cases an owner defaults because he acquiesces to the agency's determination that his
goods violate the law. In other instances, he may believe in good
faith that his product is in full compliance with the standard, or that
it is not subject to the standard, yet choose not to contest the seizure
because he estimates that the costs of litigating the issues will exceed
the value of the property, 49 or because he believes that litigation will
attract additional adverse publicity. 50
The failure to provide for mandatory judicial consideration of the
propriety of a seizure, either before or immediately after seizure, is a
consequence of the strict application of the Admiralty Rules to product seizures. 51 Such procedures appear to violate the imperatives
of the fourth and fifth amendments.
48. E.g., according to the FDA, there were 1,126 seizure actions pending during fiscal year
1974 of which 727 were terminated during the year.
The 727 seizure cases disposed of were terminated as follows: 411 default decrees of
destruction, 81 consent decrees of destruction, 136 consent decrees releasing goods
under bond for reconditioning, 10 default decrees releasing goods for educational
or charitable purposes, 8 consent decrees releasing goods to charitable institutions,
and 80 dismissed, primarily because seizure had not been effected. The U.S. Attorney declined to file one case.
FOOD & DRUC ADMINISTRATION, ANN. REP. 14, Table 2, at 14 n.* (1974).
49. In addition to attorney's fees, the unsuccessful claimant may be required to pay court
costs and fees, as well as storage and other proper expenses. Hipolite Egg Co. v. United States,
220 U.S. 45, 58-60 (1911) (district court has jurisdiction to enter personal judgment for costs
against the claimant). See FED. R. Civ. P., Supp. E(4)(e). By contrast, if the claimant proves
that his product complies with the applicable standard, or is not subject to that standard, he
cannot turn to the government to recover his costs. United States v. One Can Kololiva, 24 F.
Supp. 110, 112 (D. Mass. 1938) (claimants who obtain judgment denying condemnation and
directing return of the seized goods are not entitled to costs) (citing United States v, French
Sardine Co., 80 F.2d 325 (9th Cir. 1935)).
50. The damaging consequences of the publicity attendant upon a product seizure are well
illustrated by the cranberry scare of 1959. Shortly before Thanksgiving, the Secretary of Health,
Education, and Welfare issued a public warning that cranberries in that year's crop had retained
a harmful chemical pesticide residue. The FDA seized a number of shipments with the result
that 86% of the crop remained unsold, despite a subsequent finding that more Than 99% of the
cranberries were fit for human consumption. Austern, Sanctions in Silhouette, Lecture at the
Harvard Law School, March 22, 1960, quoted in W. GELHORN & C. BYSE, ADMINISTRATIVE
LAW, CASES AND COMMENTS 672 (4th ed. 1960).
51. Congress, in enacting the seizure and condemnation provisions of the Pure Food Act of
1906, ch. 3915, 34 Stat. 768, did not intend that the proceedings conform to admiralty procedures beyond the seizure of the property by process in rein. 443 Cans of Frozen Egg Product v.
United States, 226 U.S. 172, 183 (1912). Subsequent to seizure, the case takes on the character
of an action at law with trial by jury if demanded. United States v. 935 Cases . . . Tomato
Puree, 136 F.2d 523 (6th Cir.), cert. denied, 320 U.S. 778 (1943); United States v. Arizona
Canning Co., 212 F.2d 532, 534 (10th Cir. 1954).
1979]
PRODUCT SEIZURES
3. The constitutionality of product seizure: the Troxler case
A recent constitutional challenge to the procedures governing product seizure was brought in United States v. Articles of Hazardous
Substance 52 [hereinafter cited as Troxler]. In Troxler, the Consumer
Products Safety Commission (CPSC) obtained an ex parte warrant of
seizure from the clerk of the district court pursuant to 15 U.S.C. §
1265 5 3 that authorizes the seizure of a banned hazardous substance
while held for sale. The warrant directed the seizure of several different types of TRIS-treated 54 children's sleepwear that were being offered for sale by claimant, Troxler Hosiery Company. The CPSC,
however, had not attached any documentation of TRIS' alleged toxic
nature to the complaint, nor had it conducted a proper rulemaking
proceeding. 55
The district court, in applying the fourth amendment to this seizure, held that the unsupported allegations of the complaint were
insufficient to establish probable cause to believe that TRIS was 5a6
"banned hazardous substance" within the meaning of the statute.
The warrant procedure also was deemed defective because it did not
provide for the interposition of a neutral judicial officer between the
government and the person whose property was to be seized, as required by the fourth amendment. 57 The court further held that because the claimant had shown that he would suffer irreparable injury
pending the outcome of the condemnation action, 58 a prompt postsei-
52. 444 F. Supp. 1260 (M.D.N.C.), revd and remanded, 588 F.2d 39 (4th Cir. 1978).
53. 15 U.S.C. § 1265 (1976).
54. TRIS is a flame retardant technically known as (2,3 Dibromo-protyl) phosphate. United
States v. Articles of Hazardous Substance, 588 F.2d 39, 41 (4th Cir. 1978). Children's sleepwear
was treated with TRIS to meet flammability standards promulgated by the CPSC pursuant to
the Flammable Fabrics Act, as amended, 15 U.S.C. § 1193 (1976). See 16 C.F.R. §§ 1615-16
(1978). It is ironic that Troxler, in seeking to comply with one statute, arguably violated
another.
55. 444 F. Supp. at 1265 n.2. The statute allows the CPSC to proceed against a substance
by regulation pursuant to its rulemaking authority, or to go directly to court upon the allegation
that the goods or substances meet the statutory definition of a banned hazardous substance. 12
U.S.C. § 1262(a)(1), (e)(3)(A) (1974).
56. 444 F. Supp. at 1265. The court voiced its belief that had TRIS-treated garments been
found, in the course of a proper rulemaking procedure, to be a "banned hazardous substance,"
or had the complaint been supported by documentation of TRIS' alleged toxic nature, the probable cause requirement would have been met. Id. at 1265 n.2.
57. Id. at 1265-66.
58. Id. at 1267. Affidavits filed by Troxler established that the seized goods constituted over
94% of its retail inventory. In addition, the company had taken out a short term loan to purchase the garments. If the company were prevented from selling the sleepwear, it would be
unable to repay the loans. Because of Troxler's current financial position, the seizure was likely
to result in the insolvency of the company and its president. Id.
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zure hearing was necessary to comply with the due process provisions
of the fifth amendment. 59
The Court of Appeals for the Fourth Circuit, however, reversed
the district court's decision in Troxier, finding "little substantiality" in
the claimant's constitutional arguments. 60 This casual rejection of
the constitutional claims was unjustified in light of the lower court's
persuasive analysis, and appears to be a classic example of total judicial deference to legislative and administrative judgments.
II.
APPLICABILITY OF THE FOURTH AMENDMENT
TO PRODUCT SEIZURES
Because of the potentially irreparable nature of the deprivation
caused by governmental product seizures, the procedural rules governing these seizures should provide for a means to screen out unjustified seizures before they take place. The leading case in the product
seizure area, Ewing v. Mytinger & Casselberrj,Inc., 61 stands for the
proposition that a claimant has no right to an adversary preseizure
hearing. 62 The Supreme Court, however, has not considered
whether an ex parte hearing, required by the fourth amendment's
prohibition against warrants issued without probable cause, is applicable to product seizures.
In an analogous area of law, the Supreme Court has held that a
neutral determination of "probable" cause by an independent judicial
officer is a prerequisite to regulatory inspections. 63 Limits on the
issuance of such warrants ensure an objective determination of the
propriety of the inspection in order to protect private parties against
arbitrary and mistaken governmental intrusions. 64 The same
rationale applies to product seizures.
59. Id. at 1268. The district court pointed out that neither the admiralty procedure nor the
Federal Rules of Civil Procedure entitle a claimant, as a matter of'right, to an immediate
postseizure hearing. Id. Thus, the opportunity to gain prompt access to the courts would depend upon the practice in a particular jurisdiction. Furthermore, it is likely that the burden at
such a hearing would be on the claimant to show wrongful or arbitrary deprivation of Its property. See MINoRITY REPORT, supra note 31, at 6789.
60. United States v. Articles of Hazardous Substance, 588 F.2d at 39, 42 (4th Cir. 1978).
61. 339 U.S. 594 (1950).
62. Id. at 600.
63. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978).
64. Id. at 322.
1979]
PRODUCT SEIZURES
A. The Fourth Amendment in Administrative Searches
In Camara v. Municipal Court, 65 the Supreme Court held that the
66
fourth amendment prohibits warrantless administrative searches.
The Court declared that "except in certain carefully defined classes
of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid warrant."' 6 7 An
inspection warrant is regarded as necessary to inform the person
whose premises are to be searched that the inspection is authorized,
to advise him of the lawful limits of the inspection, and to assure him
that the inspector is acting under proper authorization. 68 The Court
concluded that it would be anomalous to hold that the safeguards of
the fourth amendment protect an individual and his property only if
he were suspected of crime. 69
The Court recently held in Marshall v. Barlow's Inc., 70 that
routine nonconsensual inspections under section 8 of the Occupational Safety and Health Act of 1970,71' enacted to safeguard
employees against hazards in the workplace, also require a warrant. 72 The Court weighed the public interest in the regulation and
supervision of safety in the workplace against the individual's interest
in freedom from arbitrary governmental intrusions, and struck the bal73
ance in favor of a warrant requirement.
If circumstances demand that a warrant be obtained, probable
cause remains "the standard by which a particular decision to search
74
is tested against the constitutional mandate of reasonableness."
Probable cause in the criminal law sense, however, is not required
for regulatory searches.75 Rather, a warrant will issue on a showing
65. 387 U.S. 523 (1967).
66. Id. at 540. In Camara, a housing inspector attempted to make a warrantless routine
annual check of appellant's residence for violations of the housing code. Its companion case, See
v. City of Seattle, 387 U.S. 541 (1967), barred warrantless inspections of commercial premises.
In See, appellant had refused to permit a fire inspector to enter his locked commercial
warehouse. The See requirements are not applicable to strictly regulated businesses, such as the
selling of firearms or liquor. United States v. Biswell, 406 U.S. 311 (1972) (firearms); Colonnade
Catering Corp. v. United States, 397 U.S. 72 (1970) (liquor).
67. Camara v. Municipal Court, 387 U.S. 523, 528-29 (1967).
68. Id. at 532.
69. Id. at 530.
70. 436 U.S. 307 (1978).
71. 29 U.S.C. § 657(a) (1976).
72. 436 U.S. at 325.
73. Id. at 322-23.
74. Camara v. Municipal Court, 387 U.S. 523, 534 (1967).
75. Marshall v. Barlow's, Inc., 436 U.S. 307, 320 (1978).
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"that reasonable legislative or administrative standards
for conducting
... an inspection are satisfied with respect to a particular [estab76
lishment]."
B. The Fourth Amendment in Administrative Seizures
Although the Supreme Court has ruled definitively that administrative searches are within the purview of the fourth amendment, it has
yet to consider whether administrative seizures require the same procedural safeguards. Moreover, product seizures have received minimal fourth amendment scrutiny by lower courts.
The early cases addressing the issue premised fourth amendment
applicability on the characterization of a product seizure as either
criminal or civil. 77 The argument that product seizures are civil in
nature, and therefore not subject to the strictures of the fourth
amendment, has lost all validity since Camara v. Municipal Court. 78
Even if the distinction between civil and criminal seizures was appropriate, far more stringent standards have been imposed on the
former than existed at the time this argument was advanced. Conclusory allegations are no longer sufficient to justify the issuance of a
writ of replevin or attachment. 79 Indeed, preseizure notice and
76. Id. (quoting Camara v. Municipal Court, 387 U.S. 523, 538 (1967)).
77. For example, in United States v. Eight Packages and Casks of Drugs, 5 F.2d 971 (S.D.
Ohio 1910), the court stated that whereas a condemnation suit to establish whether a seizure Is
justified is a civil proceeding, "a seizure of goods is in effect a proceeding against the owner ...
and hence criminal in nature .... " Id. at 976-77 (citations omitted). Thus, the court held,
"the matter is brought within the meaning and operation of the Fourth Amendment
...
" id.
at 977. To this court, the seizure of goods pursuant to a warrant issued without probable cause
supported by oath was no less serious an offense than seizure of a person under similar circumstances. Id. But see United States v. 18 Cases of Tuna Fish, 5 F.2d 979 (W.D. Va. 1925), in
which the court, looking to the history of the fourth amendment, disagreed. Historically, there
had been no evidence of abuses with respect to writs of attachment; rather, adoption of the
fourth amendment reflected concern with abuse of search warrants. Id. at 979-80. On this basis,
the court concluded that "there [is] no reason [to ascribe to the Framers] an intent that the
amendment should include such attachments." Id. at 979. Rather, "[tihe bold letter of the
amendment suggests that it was intended to apply only to warrants which direct both search
and seizure." Id. This conclusion begs the question whether the "warrants of arrest" issued
under the Admiralty Rules should be characterized as true fourth amendment warrants or
merely writs of attachment. Compare United States v. 76 Cases ... Peanut Butter ... Top
Notch Brand, 146 F.2d 124 (4th Cir. 1944) (fourth amendment inapplicable to seizure of unhealthful products on public policy grounds), cert. denied, 325 U.S. 856 (1945), with United
States v. 62 Packages . . . Marmola Prescription Tablets, 48 F. Supp. 878 (1943) (fourth
amendment inapplicable to seizure process in civil actions), aff'd, 142 F.2d 107 (7th Cir.), cert.
denied, 323 U.S. 731 (1944).
78. 387 U.S. 534 (1967). See notes 65-76 & accompanying text supra.
79. E.g., Fuentes v. Shevin, 407 U.S. 67, 93 (1972) (replevin); Sniadach v. Family Finance
Corp., 395 U.S. 337, 343 (1969) (Harlan, J., concurring) (attachment).
1979]
PRODUCT SEIZURES
hearing are required unless exigent circumstances demand prompt action. 8 0 It would be ironic, in light of these developments, to hold
product seizure warrants to a discarded standard.
In addition, the rationale underlying product seizures resembles
more closely that of criminal search warrants than of civil writs of
replevin or attachment. The Supreme Court has noted three distinguishing factors. First, search warrants are issued to secure important
governmental interests rather than to protect the self-interest of private parties. 8 1 Because product seizures are employed by the government to protect public health and safety, they fall within this provision. 82 Second, search warrants are issued in situations where
prior notice and hearing might lead to the destruction or disappearance of the items sought. 83 While responsible businessmen are unlikely to conceal suspect products, the delay occasioned by notice and
hearing may result in the dispersal or sale of these products, making
them more difficult to trace.
Finally, although an adversary hearing is not required for the issuance of a search warrant, the state must establish probable
cause. 8 4 The Court appears to have postulated an either/or standard.
Having rejected a preseizure hearing as a condition precedent to product seizure,8 5 the Court should substitute probable cause. To date,
such a requirement has been conspicuously absent.
The nomenclature of the courts further confuses the requirements
for product seizure warrants. The comparison between writs of replevin or attachment and search warrants evidently has led some courts
to believe that the locus of goods to be seized may be the controlling
factor in determining the necessity of meeting fourth amendment requirements. 86 While such a consideration may be relevant, it is see-
80. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 91 n.23 (1972); North Ga. Finishing, Inc. v.
Di-Chem, Inc., 419 U.S. 601, 607 (1975). In his concurring opinion in Di-Chein, Justice Powell
asserted that pregarnishment notice and hearing are not required. He went on to note, however, that the garnisher would have to establish prior to seizure "a factual basis of the need to
resort to the remedy as a means of preventing removal or dissipation of assets required to satisfy
the claim." Id. at 611 (Powell, J., concurring in judgment).
81. Fuentes v. Shevin, 407 U.S. 67, 93-94 n.30 (1972).
82. See notes 34, 37 & accompanying text supra.
83. Fuentes v. Shevin, 407 U.S. 67, 93-94 n.30 (1972).
84. Id.
85. Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950).
86. See, e.g., United States v. Undetermined Quantities of Depressant or Stimulant Drugs,
282 F. Supp. 543 (S.D. Fla. 1968). In this case, the court relied on Camara v. Municipal Court,
387 U.S. 523 (1967), in holding that a warrant of arrest in rein did not comply with fourth
amendment safeguards. 282 F. Supp. at 545-46. Thus, the seizure of unregistered drugs from a
physician's private office was deemed unconstitutional. Id. at 546. The court was careful to limit
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ondary. It is the nature of the goods that controls their amenability to
seizure in the first instance. 87
Whether one proceeds under a property or privacy analysis in
evaluating the propriety of a seizure, the possession of contraband is
not a protected interest. 88 It becomes all the more critical, then, to
present to a neutral, detached judicial officer facts from which he can
conclude that suspect products are, in fact, contraband.
C. Implementation of Fourth Amendment Procedural
Safeguards in Product Seizures
Once a product seizure is brought within the protection of the
fourth amendment, the procedures that will satisfy the mandate of
the warrant clause remain to be defined. The courts generally have
failed to delineate how procedural safeguards must be implemented.
its decision to the facts before it, but intimated that a seizure from "a public warehouse, a
common carrier, or public place like store shelves," might call for a different result. Id. at 535
& n.6.
87. Two recent First Circuit cases have addressed the requirements for distinguishing contraband from lawful inventory in a search warrant application. United States v. Cortellesso, 601
F.2d 28 (1st Cir. 1979) (order granting motion to suppress reversed); United States v. Klein,
565 F.2d 183 (1st Cir. 1977) (order granting motion to suppress upheld). In Klein, the seizure of
"pirate tapes" from a record store was deemed unconstitutional because neither the warrant nor
the affidavit in support thereof specified how the executing agents could distinguish unlawful
copies from legitimate recordings. United States v. Klein, 565 F.2d at 188. The defects could have
been cured easily because the agent was an expert fn the detection of pirate tapes and could
have specified in the warrant application such "indicia of illegality as the crudeness of tape
jackets, the obscurity of recording company names, and the lack of a known association of such a
company with a known artist." Id. The court noted that it did not "believe that the particularity
requirement of warrants can be fulfilled by the uninformed speculation of magistrates or even
judges as to whether one form of contraband or another can be distinguished from legitimate
similar products by agents who may or may not be experts in the field." Id.
In Cortellesso, the seizure of a large quantity of stolen goods was upheld because the twoprong test established by Klein was met. United States v. Cortellesso, 601 F.2d at 31 (citing
United States v. Klein, 565 F.2d at 188). First, sufficient evidence was presented to the magistrate to establish that there was reason to believe that a large collection of contraband was on
the premises to be searched. This evidence included information from informants and corroborating wiretaps. Second, since the labels had been removed from the stolen garments, no
more precise description than a generic description could be provided. Id. at 32.
These cases suggest that sufficient data must be presented to the judicial officer authorizing a
warrant for arrest or attachment for him to determine that the products to be seized are in fact
contraband and for the executing officers to be able to distinguish these products from the
lawful inventory of the owner.
88. For a discussion of the historical development of the judicial distinction betveen contraband and other items subject to search and seizure, see Warden v. Hayden, 387 U.S. 294,
312-25 (1967) (Douglas, J., dissenting). As Justice Douglas noted, "[tihe right to seize contraband is not absolute. If the search leading to discovery of an illicit article is not incidental to
a lawful arrest or not authorized by a search warrant, the fact that contraband is discovered does
not make the seizure constitutional." Id. at 319-20.
1979]
PRODUCT SEIZURES
In Founding Church of Scientology v. United States,8 9 the District
of Columbia Circuit acknowledged that the warrant requirement traditionally has not been imposed on the attachment of property in a
civil proceeding, but stated "[t]his does not mean that the Fourth
Amendment does not apply to such seizures, in both its substantive
prohibition against unreasonable seizures and its procedural requirement of judicial or quasi-judicial review of the decision to seize." 90
Judge Wright intimated, however, that judicial control can be imposed through a proceeding other than the usual probable cause hearing before a judicial officer. 91 Precisely what kind of proceeding he
intended is uncertain because the court avoided subjecting the Admiralty Rules to fourth amendment scrutiny by holding that the seizure
"was reasonable in both the grounds supporting it and the judicial
supervision over the decision to make it." 92 Despite the court's ambiguous reasoning, its holding implies that some form of judicial oversight of the issuance of the warrant is necessary.
In its recent decision in Troxier, 93 the Fourth Circuit translated
the narrow holding in Founding Church of Scientology into a broad
standard that "adherence to the Admiralty Rules," without more,
"provide[s] sufficient probable cause" for the issuance of a warrant of
arrest. 94 It is incomprehensible how the Fourth Circuit could find
the fourth amendment applicable, and yet accept admiralty procedures as a substitute for prior review by a judicial officer. The plain
language of the fourth amendment and the mandate of the Supreme
Court in Camara demand that a finding of probable cause precede
the issuance of an administrative warrant. 95 The position taken by
89. 409 F.2d 1146 (D.C. Cir.), cert. denied, 396 U.S. 863 (1969).
90. Id. at 1150.
91. Id.
92. Id. Judge Wright noted that the United States Attorney had particularly described the
articles to be seized, and had given "a reasonably particular account of the respects in which
they were thought to contravene the act." Id. In addition, the libel had been issued upon court
order after review of the complaint by a district court judge. Id.
93. United States v. Articles of Hazardous Substance, 588 F.2d 39 (4th Cir. 1978).
94. Id. at 43. The procedure actually employed in Troxier was not comparable to that under
review in Founding Church of Scientology because, in Troxler, the warrant was issued summarily by the clerk of the court pursuant to Admiralty Rules. Id. at 41. See notes 52-55 & accompanying text supra.
95. Camara v. Municipal Court, 387 U.S. 523, 534 (1967). In Camara, the Court explained
that application of the probable cause standard required an evaluation of the importance of the
governmental interest that supported the intrusion upon a private citizen. Thus, the need for
inspection would be considered in light of the reasonable goals of code enforcement. Id. at 535.
This means that the probable cause requirement is not the equivalent of that in a criminal case.
Nonetheless, a showing of reasonableness in view of the particular facts must be subjected to
independent review.
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the court of appeals in Troxler, that mere adherence to the rules is
enough to supply probable cause, is untenable because the rules do
not address that question. The Admiralty Rules themselves provide
for no review at all; in fact, the clerk is without discretion in the
issuance of the warrant. All that is required is the filing of the complaint. 96 Probable cause is not a series of steps to be followed in
obtaining a judicial officer to conclude that seizure is appropriate. 97
D. What Constitutes Probable Cause?
Although Camara v. Municipal Court9" requires that a showing of
probable cause precede the issuance of a warrant for an administrative search, Marshall v. Barlow's, Inc. 99 makes clear that "[p]robable
cause in the criminal law sense is not required."100 An administrative search warrant may be based on "reasonable legislative or administrative standards" as well as specific evidence of a violation.' 0 '
For routine inspections, this relaxed probable cause standard may
achieve an appropriate balance between the competing interests of
efficient governmental enforcement and the privacy and security of
the individual against arbitrary governmental intrusions. 102
A product seizure, however, requires a more particularized inquiry
because it is not effected pursuant to a regulatory program with broad
standards; rather, it is a response to an individual event. 103 Products
Although this comment is not concerned with the quantum of supporting evidence to be
presented when the government seeks to initiate a seizure, it should be noted that the kind of
evidence to be presented in an application for a warrant to conduct a regulatory inspection
would differ from that presented in conjunction with a complaint against a product. It is reasonable to base a periodic area inspection on an appraisal of conditions in the area as a whole, but
such generalized standards would be inappropriate to a seizure of an allegedly harmful product.
To conduct a regulatory inspection, the government need not know of an actual violation. On
the other hand, to seize a product, the government should be required to show that it 'is
authorized by statute to effect this particular seizure and that there is some likelihood that the
product violates the governing standard. See notes 103-04 & accompanying text infra.
96. FED. R. Civ. P., Supp. C(3).
97. See, e.g., Camara v. Municipal Court, 387 U.S. 523, 538 (1967).
98. 387 U.S. 523 (1967).
99. 436 U.S. 307 (1978).
100. Id. at 320.
101. Id. (quoting Camara v. Municipal Court, 387 U.S. 523, 538 (1967)).
102. See id. at 323.
103. Cf., e.g., Michigan v. Tyler, 436 U.S. 499, 507 (1978). The Court in Tyler pointed out
that for routine building inspections, the balance between the need for the intrusion and disruption to the occupant is achieved by broad legislative or administrative guidelines. But in the
context of an investigatory fire search, an individual event, an inquiry should be made into
particular facts. Id.
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PRODUCT SEIZURES
either comply with the standard or they do not. Thus, to secure a
warrant of seizure, the government should have the burden of appending specific evidence of violation to its complaint; mere conclusory allegations that follow the words of the statute do not suffice.' 0 4
Finally, it follows, from the requirement that a complaint contain
facts from which a judicial officer can ascertain the reasonableness of a
seizure, that review of the complaint be part of the scheme. 105 A
proper showing of probable cause is valueless unless an independent
judicial officer assesses the need for seizure 1 0 6 and determines that
the particular seizure is authorized by the statute and based upon
0 7
adequate factual findings. 1
III.
DEPRIVATION OF PROPERTY:
THE MANDATES OF THE DUE PROCESS CLAUSE
Despite the application of fourth amendment procedural safeguards
to product seizures, there is a substantial likelihood that the judicial
officer examining the complaint will defer to administrative expertise
because of the scientific and technical nature of the evidence involved. 108 Judicial review of the complaint prior to the issuance of
104. See id.
105. While the Court has yet to articulate any precise guidelines as to the level of judicial
officer required to review administrative warrants, it has addressed this general issue in several
recent cases. For example, in Mitchell v. W.T. Grant Co., the Court reviewed the constitutionality of a Louisiana procedure whereby a writ of sequestration could be obtained on the creditor's ex parte application to a local judge. 416 U.S. 600 (1974). In upholding the validity of this
procedure, the Court emphasized the presence of judicial control over the process from beginning to end, thereby mitigating the risk of erroneous deprivation. Id. at 616-17. Similarly, in
Fuentes v. Shevin, the Court declared two state replevin statutes unconstitutional because they
provided for the issuance of a writ of replevin through a summary process of ex parte application to court clerks. 407 U.S. 67, 83 (1972). See also North Ca. Finishing, Inc. v. Di-Chem,
Inc., 419 U.S. 601 (1975) (holding unconstitutional state garnishment statute because it entailed
a deprivation of personal property without participation of a judicial officer). Thus, although the
Court has yet to consider what level of judicial officer should review a product seizure, it has
expressly invalidated several attachment statutes that required only the participation of a court
clerk.
Even if judicial review of a properly documented warrant application is established, there is
some danger of rubber stamp approval in product seizure cases. A judge who is not familiar
with the complex subject matter involved in a particular seizure, and who does not have sufficient time to research adequately before a decision must be made, may defer to administrative
expertise. Such deference on technical matters is an overriding consideration in the scope of
review of challenged agency action. SCHWARTZ, supra note 44, at 579-80.
106. Marshall v. Barlow's, Inc., 436 U.S. 307, 323 (1978).
107. Review by a neutral judicial officer also ensures that harassment of the alleged offender
is kept to a minimum because the scope of the invasion will be limited to the objectives set out
in the warrant. Id.
108. See note 105 supra.
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the warrant, therefore, may not protect adequately the claimant.
Thus, it is essential that the rules, as they relate to product seizure,
be amended to provide for a prompt postseizure hearing to lessen the
impact of wrongful deprivation.
There has been no substantial development of due process principles in the area of product seizures since 1950, when the Supreme
Court decided Ewing v. Mytinger & Casselberry, Inc. 109 Ewing involved a summary seizure of misbranded food supplements without a
preseizure hearing. 110 The Court sustained the constitutionality of
the summary procedure over a procedural due process challenge by
The Ewing decision, however, does
the distributor of the article. "
not preclude the imposition of a requirement that a claimant be accorded a prompt postseizure hearing to determine probable cause.
Because the Court in Ewing was considering only whether due process mandated a preseizure hearing," i2 its decision was no more than
a rejection of the preseizure hearing requirement. In view of the expansion of due process concepts in parallel situations, the requirement of a prompt postseizure hearing in product seizures merits consideration.
The Supreme Court has held repeatedly that a person cannot be
deprived of his property by governmental seizure-or seizure with
governmental approval-without being accorded the opportunity to
be heard "at a meaningful time and in a meaningful manner." 113
Typically, this due process right to a meaningful hearing has been
employed to protect indigents from the tremendous hardship imposed
by prejudgment garnishment of wages and attachment of household
goods. "14 The overriding concern of the Court in these cases has
been to protect against arbitrary or mistaken deprivations of prop-
109. 339 U.S. 594 (1950).
110. Id. at 595. The Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 331 (1972), provided for seizures of misbranded articles without prior hearing. The objectionable product in
Ewing was a mislabled vitamin preparation which contained no harmful ingredients. 339 U.S. at
596.
111. 339 U.S. at 598. "At times a preliminary decision by an agency is a step in an administrative proceeding. We have repeatedly held that no hearing is required by due process so long
as the requisite hearing is held before the final administrative order becomes effective." Id.
112. Id. at 598-99.
113. E.g., Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
114. Fuentes v. Shevin, 407 U.S. 67, 89 (1972) (household goods may be "essential to provide a minimally decent environment for human beings in their day-to-day lives"); Sniadach v.
Family Fin. Corp., 395 U.S. 337, 340 (1969) ("a prejudgment garnishment ... is a taking which
may impose tremendous hardship" on a wage earner with a family to support).
1979]
PRODUCT SEIZURES
safeguards, either beerty, 1 1 5 by interposition of sufficient procedural
11 6
fore or immediately after the deprivation.
The due process clause, however, has not been read to protect only
individuals who are disadvantaged because of their unequal bargaining power. Indeed, in North Georgia Finishing, Inc. v. Di-Chem,
Inc., 117 the Supreme Court invalidated a Georgia statute for failing to
meet due process standards, where a corporate plaintiff had garnished
the bank account of a corporate defendant. 118 The Court in DiChem found the statute constitutionally inadequate, in part because it
did not provide the debtor the opportunity of a prompt postseizure
hearing at which the writ of garnishment could be dissolved in the
event that the creditor failed to show probable cause for the garnishment. 119
A principle for judging the constitutional adequacy of statutory procedures in the prejudgment attachment area emerges from these decisions. It requires balancing the creditor's interests against the need
to minimize the risk that an ex parte issuance of a writ will result in a
wrongful or arbitrary deprivation of property, even commercial property. 120 Provision for a prompt postseizure hearing has been
115. E.g., North Ca. Finishing, Inc. v. Di-Chem., Inc., 419 U.S. 601, 608 (1975).
116. In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court announced a general
formula for determining the procedures mandated by due process:
[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.
Id. at 334-35.
117. 419 U.S. 601 (1975).
118. Id. at 608. The writ of garnishment was issuable by the court clerk on the affidavit of
the creditor or his attorney and needed to contain only conclusory allegations. Id. at 602-03.
The seizure could be dissolved only by posting bond to protect the plaintiff creditor. Id. at 603.
The statute also made no provision for a prompt postseizure hearing at which the creditor would
have the burden of showing probable cause for the garnishment. Id. at 607.
119. Id. at 607. Justice Powell, in his concurring opinion, set out guidelines for determining
whether the garnishment was conducted according to the requirements of due process: the
garnisher must provide adequate security; he must establish before a neutral officer the "factual
basis of the need to resort to the remedy as a means of preventing removal or dissipation of
assets required to satisfy the claim"; there must be a "prompt post-garnishment judicial hearing
at which the garnisher has the burden of showing probable cause to believe there is a need to
continue the garnishment for a sufficient period of time to allow proof and satisfaction of the
alleged debt"; finally, the state "should provide the debtor an opportunity to free those assets
by posting adequate security in their place." Id. at 611-13 (concurring opinion).
120. See Jonnet v. Dollar Say. Bank of New York, 530 F.2d 1128 (3d Cir. 1976); Hutchinson
v. Bank of North Carolina, 392 F. Supp. 888 (M.D.N.C. 1975) (three-judge court). InJonnet,
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deemed to be an important factor in minimizing the risk of mistaken
deprivation. 121 The Supreme Court in Commissioner v. Shapiro,122
however, has limited the right to a prompt postseizure hearing to
those situations in which the plaintiff can demonstrate irreparable injury resulting from the seizure of his property. 123
In Shapiro, the Internal Revenue Service seized, without notice or
hearing, all of the taxpayer's liquid assets through a jeopardy assessment. 124 The Government argued that it was not obligated to establish the factual basis for the seizure irrespective of the magnitude of
irreparable injury to the taxpayer. The Court, however, concluded
that although the collection of the revenues was sufficiently important
to justify seizure without a preseizure hearing, it was doubtful that
this governmental interest justified a seizure causing irreparable injury without a prompt postseizure inquiry into the basis for the
claim. 125
In light of the developments since the decision in Ewing v.
Mytinger & Casselberry, Inc., 126 it is apparent that due process rethe defendant challenged the constitutionality of Pennsylvania's foreign attachment procedure.
The court found the procedures provided inadequate protection to a prospective defendant
against wrongful attachment. 530 F.2d at 1129. The court further concluded that without great
inconvenience to a plaintiff some additional measure of protection could be achieved. Id. First,
the attachment process could be initiated only upon the filing of an affidavit stating substantially
the factual basis for the cause of action. Id. Second, because the affidavit requirement would be
useless if not given meaningful consideration, the court held that due process requires the
affidavit be presented to an official with the competence to determine whether the conditions
for attachment have been met. Id. at 1130. Third, there must be a provision for indemnification
of a defendant in case of wrongful attachment. Id. Fourth, the defendant must have an early
opportunity to contest the bases for attachment in view of the damage that may occur. The
court interpreted recent Supreme Court decisions to compel a prompt postseizure hearing at
which the burden would be on the plaintiff to demonstrate the probable validity of his claim.
Id. Finally, a defendant must be entitled to dissolve the attachment in a manner not prejudicial
to the plaintiff. Id.
121. See North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 607 (1975); Mitchell v.
W.T. Grant Co., 416 U.S. 600, 606 (1974).
122. 424 U.S. 614 (1976).
123. Id. at 629 & n. 1.
124. Id. at 619. Jeopardy assessment is the procedure by which the Internal Revenue Service
may assess and collect taxes immediately, bypassing the usual formalities, where collection of
the tax appears in question. The term is also used to describe the Service's power to terminate
a taxpayer's taxable year prematurely where collection is doubtful because the taxpayer plans to
leave the country. 26 U.S.C. §§ 6331, 6861 (1976). See Commissioner v. Shapiro, 424 U.S. 614
(1976).
125. Id. at 630 & n.12. The Court noted, however, that a probable cause hearing would not
be required where a "complainant eventually will be 'made whole' for any inadequacy in compensation for confiscated property." Id. at 629 n.11. This is not the case in product seizures.
The Court further observed that the Internal Revenue Service may wait 60 days before issuing a
deficiency notice that entitles the taxpayer to get into Tax Court. Preliminary relief, therefore,
is not available under these circumstances. Id. at 630 n.12.
126. 339 U.S. 594 (1950).
1979]
PRODUCT SEIZURES
quires that, when a claimant establishes irreparable injury 12 7 resulting from a seizure, he be afforded the opportunity for a prompt postseizure hearing to determine the seizure's validity.
IV. CONCLUSION
The proliferation of seizure provisions in federal statutes that have
as their goal the protection of public health and welfare requires a
reassessment of the constitutional adequacy of the procedures to effect a seizure. Although seizure is an extremely useful weapon in the
arsenal of administrative enforcement measures, it is also one of the
most drastic measures in any enforcement scheme. A seizure causes
an intrusion upon a business enterprise that is far more lasting and
28
disruptive than a regulatory inspection. 1
The Supreme Court has acknowledged the constitutional right of
businesses to carry on their activities free from unreasonable governmental intrusions. 1 2 9 To protect this right, the Court has
required that government officials obtain a warrant based upon probable cause and reviewed by a neutral judicial officer prior to a nonconsensual regulatory inspection. 130 The rules must accord the same
procedural safeguards to businesses whose property is to be seized.
Because there is some likelihood that judicial officers who review a
warrant application will show great deference to agency expertise, the
procedures must also provide for postseizure protection. In keeping
with developments in analogous situations, 131 a claimant of seized
127. Irreparable injury is most often defined in its application to the decision of whether or
not to grant a preliminary injunction. The courts have attempted to limit its application. See,
e.g., Smith Corp. v. FTC, 530 F.2d 515, 525 (3d Cir. 1976) ("Irreparable injury is suffered
when monetary damages are difflcult to ascertain or are inadequate."); A.O. New York Path. &
X-Ray Lab., Inc. v. Immigration & Naturalization Serv., 523 F.2d 79, 81 (2d Cir. 1975) ("Irreparable harm can be found where there is a continuing wrong which cannot be adequately
redressed by final relief on the merits."). In the context of product seizures a strong argument
can be made that spoilage or deterioration of goods, fluctuation in market prices and adverse
publicity constitute irreparable injury due to the devastating effects they might have on a particular business enterprise or an entire industry. See, e.g., notes 50, 111 supra. However,
"[m]ere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury." Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974). "The possibility that adequate compensatory or other relief will be available at a later date, in the ordinary
course of litigation, weighs heavily against a claim of irreparable harm." Virginia Pet. Jobbers
Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958).
128. See notes 7, 50, 127 & accompanying text supra.
129. Marshall v. Barlow's, Inc., 436 U.S. 307, 311-12 (1978).
130. See notes 72-76 & accompanying text supra.
131. North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 607 (1975); Commissioner v.
Shapiro, 424 U.S. 614, 630 (1976).
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property, who can substantiate the possibility of irreparable injury
pending the outcome of a condemnation suit, must have a right to
test the validity of a seizure at a prompt postseizure hearing. This
right should be incorporated into the rules to ensure uniformity of
opportunity and standards. The Constitution, and fairness, demand
no less.
GERTRUDE JOLLEK WHITE