13539.  Alleged adulteration and misbranding of batter.     U.  S.  v.  Charles 
T. Myers (Alamosa Creamery Co.).     Directed verdict of not srnilty.
(F. & D. No. 19003.    I.  S. Nos. 8548-v, 8549-v, 11945-v, 11946-v,  11947-v, 
20632-v, 20633-v.) 
On March 18, 1925, the United States, attorney for the District of Colorado, 
acting upon a report by the Secretary of Agriculture, filed in the District Court 
of the United States for said district an information against Charles T. Myers, 
trading as the Alamosa Creamery Co., Alamosa, Colo., alleging shipment by 
said defendant, in violation of the food and drugs act as amended, in various 
consignments, namely, on or about February 20, 1924, from the State of Colo- 
rado into the State of Arizona, and on or about February 20 and 21, 1924, 
respectively, from the State of Colorado into the State of New Mexico, of seven 
consignments of butter which was alleged to be adulterated and misbranded. 
The article was labeled in part: " Golden Purity Butter 1 Pound 4 Pieces 
Manufactured by Alamosa Creamery Company Alamosa-Colorado Pure Cream- 
ery Butter    *    *    *    Net Weight 16 Ounces."
Analysis by the Bureau of Chemistry of this department of 4 samples from 
each of the seven consignments showed an average of 79.1 per cent, 79 per 
cent, 79.4 per cent, 79.4 per cent, 79.4 per cent, 79.2 per cent, and 79.6 per cent, 
respectively, of milk fat. Examination of 30 packages from each of five con- 
signments and 60 packages from each of the two remaining consignments 
showed an average weight of 15.88 ounces, 15.87 ounces, 15.73 ounces, 15.82 
ounces, 15.76 ounces, 15.74 ounces, and 15.72 ounces, respectively.
Adulteration of the article was alleged in the information for the reason 
that a product deficient in milk fat had been substituted for butter, which the 
said article purported to be, and for the further reason that a product which 
contained less than 80 per cent by weight of milk fat had been substituted for 
butter, a product which should contain not less than 80 per cent by weight of 
milk fat, as defined by the act of March 4, 1923.
Misbranding was alleged for the reason that the statements, to wit, " Cream- 
ery Butter * * * Net Weight 16 Ounces," borne on the packages containing 
the article, were false and misleading, in that the said statements represented 
that the article was butter, to wit, a product containing not less than 80 per 
cent by weight of milk fat, as defined and prescribed by the act of March 4, 
1923, and that the said packages contained 16 ounces of the said article, and 
for the further reason that it was labeled as aforesaid so as to deceive and 
mislead the purchaser into the belief that it was butter and that the said pack- 
ages contained 16 ounces of the article, whereas it was not butter, in that it 
contained less than 80 per cent by weight of milk fat and the packages did 
not contain 16 ounces of the said article but did contain a less amount. Mis- 
branding was alleged for the further reason that the article was an imitation 
of and offered for sale under the distinctive name of another article and for 
the further reason that it was food in package form and the quantity of the 
contents was not plainly and conspicuously marked on the outside of the pack- 
age, since the quantity stated was more than the actual contents of the package.
On April 15, 1925, the case came on for disposition before the court and 
a jury. After the submission of certain evidence a motion to suppress the evi- 
dence was made by counsel for the defendant and sustained by the court. On 
April 16, 1925, the court delivered the following instructions to the jury, direct- 
ing a verdict of not guilty:
The COURT : " The defendant in this case has made timely motion to sup- 
press the evidence that has been offered, or, rather, testified to by the witness 
Kathe, on the ground that it violates the constitutional rights of the de- 
fendant and also is in violation of the post-office regulations or acts pertaining 
to the post office.
" It is stipulated and agreed by both sides that Mr. Kathe, an inspector of 
the Bureau of Chemistry of the United States Department of Agriculture, who 
is not connected in any official way with the Post Office Department, without a
search warrant entered the post office and opened seven packages of butter 
which had been deposited in the post office by the defendant for shipment in 
interstate commerce."
Mr. ICELAND : " That stipulation doesn't cover with the consent of the post- 
master or superintendent, "but that is a part of the stipulation in the record."
The COURT : " He did this with the consent of the postmaster. After open- 
ing the packages, he took samples therefrom and weighed the contents to de- 
termine whether they complied with section 8 of the pure food act, under 
which the defendant is being prosecuted for misbranding. He further took 
samples to be shipped to the bureau or branch of the Department of Agricul- 
ture in Denver for further test, and in place of the samples he took he substi- 
tuted another product of the defendant, which he had bought in the open 
market, and sealed up the packages and put them back in the mail, and they 
went forward to the consignee.
" In order to narrow the question to be decided, it is well to bear in mind all 
these facts, and also the further fact in addition, that this inspector did not 
have any authority under any act of Congress for his acts, and, further, had 
no search warrant. In addition he had no grounds, so far as it appears here, 
to suspect that the defendant was violating a law of the United States. In 
other words, he did not act upon any probable cause or grounds to suspect 
that a crime was being committed by the defendant, so we must look at his 
acts from the point of view that he was seeking evidence rather than acting 
upon any previous information or knowledge that would justify him in believ- 
ing defendant had or was about to commit a crime.
" The Government contends, first, that, granting that the search was illegal 
and in violation of law, the defendant cannot urge that issue because he had 
given up possession and parted with the packages in question when he put 
them in the mail, and therefore the fourth amendment to the Constitution of 
the United States is no protection, or cannot be availed of under such condi- 
tions ; secondly, that the pure food and drugs act gave the Department the 
power to make regulations for the enforcement of the act, and that under that 
authority the Department has enacted or promulgated the regulation that the 
food or drugs within the scope of sections 1, 2, and 10 of the act may be 
sampled wherever found.
" Taking up the last point first, it may be said as a matter of law that a 
regulation put out by any official or any department cannot add to or detract 
from the original act. I have not been cited to any section of the act that 
gives any official of the Department power to sample or seize property wher- 
ever found, and it is not necessary to pass upon that at this time. Certainly 
any mere regulation of the Department would not stand if in conflict with any 
fundamental right of the defendant, guaranteed him under the Constitution of 
the United States; it would have no force or effect.
" Going back now to the first question, as to whether the fourth amendment 
to the Constitution was violated, or whether the defendant can avail himself 
of its provisions under the peculiar circumstances of this case, I am clearly 
of the opinion that the inspector had absolutely no authority to go into the 
post office and open a sealed package. He was not a post-office inspector or 
employee. He had no more right to interfere with mail in its transportation 
and stop its transportation than the merest stranger. The Government offi- 
cials must act within the scope of their authority. Their authority is always 
limited, and when they go beyond the limits of the same, their acts must be 
judged like the acts of any other person not holding a Government position. 
The permission granted by the postmaster to open this mail was without the 
scope of his authority, and does not affect the lack of authority of this inspec- 
tor. In any doubtful case I think the doubt ought to be resolved against the 
Government official, because it is against public policy for any officer, without 
proper cause or authority, to interfere in any way with property of other peo- 
ple or to interfere with their papers, and when a man deposits property in the 
post office he has a right to assume that it will not be interfered with in any 
way except pursuant to some specific authority granted by Congress for the 
particular purpose in point. The case of ex parte Jackson, which has been 
cited, in 96 U. S., holds specifically that the fourth amendment to the Con- 
stitution applies to papers or property of a citizen wherever it may be, that 
case saying that: ' The constitutional guaranty of the right of the people to be 
secure in their papers against unreasonable searches and seizures extends^ to 
their papers, thus closed against inspection, wherever they may be.    Whilst
[Supplement 201
in the mail, they can only be opened and examined under like warrant issued 
upon similar oath or affirmation, particularly describing the thing to be seized 
as is required when papers are subjected to search in one's own household' 
Xo law of Congress can place in the hands of officials connected with the 
postal service any authority to invade the secrecy of letters and such sealed 
packages in the mail; and all regulations adopted as to mail matter of this 
kind must be in subordination to the great principle embodied in the fourth 
amendment to the Constitution.'
" We do not say that Congress might not give to an inspector of the Depart- 
ment the power to invade the secrecy of the mails. It is not claimed here 
that such power was ever given. So we have before us a stronger set of facts 
than that referred to and covered in the quotation from the Jackson case- 
which I have cited. Further, it is against sound public policy for Government 
officials without probable cause or proper grounds to suspect a crime is being 
committed and, without specific authority, to go around on fishing expeditions 
and interfere with the privacy of the individual or his property. This case 
of breaking into mail was no more or less tnan a trespass. I am not holding 
that this regulation could not empower the inspector to sample or seize the 
butter when offered for sale, but I don't think it gave him power-it could not 
give him power under the law laid down in the Jackson case-to commit a 
trespass upon mail matter. The recent decisions of the Supreme Court con- 
tain notice that the fourth and fifth amendments are still in full force and 
effect, and that indirect and partial repeals thereof must be especially guarded 
against.
" So the motion to suppress the evidence will be granted and exception 
allowed by the Government."-
Mr. IRELAND : " Now, if your Honor please, the question that you have taken 
up I did not think would come up in this case, but at this time the Government 
offers to submit evidence to the effect that they did have reasonable ground 
to believe that the" law was violated and was being then and there violated. 
I don't think it will make any difference, but I want it for the record."
The CouitT: " In order to make a record you may show that you made the 
offer and the same is rejected. It will not affect the case under the facts, 
in view of the fact that the inspector has no right to violate the secrecy of 
mail matter."
Mr. IRELAND: "There is one other thing I would like to have the record 
show: that while the stipulation shows this was sealed, the stipulation does 
not show it is sealed first class mail; and that the Government offers to 
prove that the facts In this case are that this was parcel post mail, fourth 
class, and does not come under what is termed first class sealed matter."
The COURT: "The stipulation states that they were sealed packages-in 
other words, they had to be broken to get into-and that the information that 
the Government obtained by virtue of the inspection could not have been 
obtained without breaking the seal or the package."
Mr. IRELAND : " No, it could not. It had to be broken, but it is not what is 
first class sealed mail, but I believe it has labeled on it ' Inspection allowed.'"
The COURT: "That disposes of this case."
Mr. PACKARD : " I then move the court for an instructed verdict in favor of 
the defendant on all the counts."
The COURT : " The motion will be granted. Gentlemen of the jury, under 
the ruling of the court the evidence that has been given is not admissible. 
Therefore, there being no other evidence, the court instructs you to find the 
defendant not guilty on each and every count of this information. The first 
juryman will piease sign the verdict, and the defendant will be discharged.
It. W. DUNLAP, Acting Secretary of Agriculture.