United States v. Biswell

PETITIONER: United States
LOCATION: Folsom Prison

DOCKET NO.: 71-81
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 406 US 311 (1972)
ARGUED: Mar 28, 1972
DECIDED: May 15, 1972

A. Kent Greenawalt - for petitioner
R. Kent Greenawalt -
Warren F. Reynolds -

Facts of the case

The case study presents the following situation. The investigating agents decided to visit the respondent, Loarn Anthony Biswell, during regular working hours. He was an operator in a pawn shop and had a license to deal with different types of sporting weapon. As soon as the agents came, they identified themselves, looked through the books, and asked if they could enter a locked gun storeroom. However, Biswell decided to ask them for a search warrant. Then the principle investigator admitted that they did not have any warrant, but the section 923(g) of the Gun Control Act of 1968 allowed the conduction of such inspections without it. They also showed him a copy of that section and that was how he opened the storeroom. The agents identified a few items that the man was not allowed to own.

As a result, Biswell was charged and sentenced for illegal ownership of weapon. The appellate judges reversed and stated that section 923(g) was illegal under the Fourth Amendment. It eventually allowed searches within any business premises and without any warrants; that was why Biswell's notable consent to that search was unreasonable. Consequently, the appellate court decided that illegally obtained sawed-off rifles were inadmissible in courtroom. The United States government requester the appellation and obtained the permission to review this case in the Supreme Court.

According to the case brief, the Supreme Court stated the following. It was obvious that the investigations for compliance with the Gun Control Act could pose only limited threats to the legitimate expectations of dealer's privacy. Also, when a dealer decided to enter that pervasively organized business and to receive a federal permission, he chose to do so with the understanding that all his business documents, records, ammunition, and guns might soon become subject to sufficient inspection.


Media for United States v. Biswell

Audio Transcription for Oral Argument - March 28, 1972 in United States v. Biswell

Warren E. Burger:

We’ll hear first in No. 71-81, United States against Biswell.

Mr. Greenawalt you may proceed whenever you’re ready.

R. Kent Greenawalt:

Mr. Chief Justice and may it please the Court.

This case is on review of the decision of the Court of Appeals for the Tenth Circuit that an agent of the Alcohol, Tobacco, and Firearms Division of the Treasury Department searched respondent Biswell’s business premises in violation of the Fourth Amendment.

The issue involved is a narrow one.

Whether Congress in regulating the distribution of firearms, may authorize treasury agents to make routine inspections during business hours of the business premises of licensed dealers in firearms and whether Congress may impost upon these licensed dealers a duty to admit the agents even though the agents do not possess a warrant.

Putting the question somewhat differently, thus the congressional authorization of such inspections and the imposition of a duty upon licensed dealers to admit the agents without warrants conflict with the Fourth Amendment.

We believe the constitutionality of the authorization and the duty Congress has imposed is plain under Colonnade Catering Corporation versus United States and that therefore the court below erred.

The relevant facts in this case are quite straight forward.

Loarn Anthony Biswell is a pawnbroker in Hobbs, New Mexico.

A substantial number of the items pawned with him as security for loans are firearms.

At the time of the inspection here he held some 444 firearms.

Biswell was a licensed dealer of firearms.

Under Section 923 of Title 18, dealers and firearms must be licensed and dealers who are explicitly defined to include pawnbrokers.

Special Investigator Hupp of the Alcohol, Tobacco and Firearms Division made a routine compliance visit to Biswell’s pawnshop.

According to Hupp, such visits of dealers are made about once a year.

Hupp identified himself and first inquired about Biswell’s records.

He ascertained that Biswell was not keeping records in the form required of all firearms dealers.

Hupp then indicated that he wish to see the storerooms where the firearms were kept.

Biswell kept these along with other pawned items in a locked storage room.

Biswell inquired if Hupp got a search warrant and Hupp said no but he showed Biswell a copy of the statute authorizing treasury agents to search the business premises of firearms dealers without warrants.

At that point, Biswell said, well, that’s what it says so I guess it is okay and he unlocked the storeroom.

Inside the storeroom, Hupp saw a rifle with an 11 and 3 quarter inch barrel.

Any rifle with a barrel of less than 16 inches is an illegal firearm under the National Firearms Act of 1968.

That Act does not absolutely forbid possession of such firearms but sharply constricts a rightful possession and commerce in such firearms.

Each set of firearm must have serial number, each dealer in such firearms must pay a special occupational tax and be specially registered with the Secretary of the Treasury and whenever any such firearm is transferred, the transferor must pay a $200.00 transfer tax and obtain approval of the Secretary of the Treasury.

It was clear to Agent Hupp that Biswell did not legally possess the sort of rifle he saw.

There was no required serial number on the rifle.

Biswell indicated that he had no idea such weapons had to be specially registered.

Finally, it was obvious that no owner would pay transfer tax of $200.00 to get a $3.00 loan although of course Hupp didn’t know the amount of the loan but he knew it was much less than $200.00 from a pawnbroker.