United States v. Device

641 F.2d 1289 UNITED STATES of America, Plaintiff-Appellee, v. An Article of Device Consisting of One DEVICE, More or Less, LABELED in Part: (front) "THERAMATIC", Defendant and Dr. Ralph B. Cloward, Claimant-Appellant. No. 78-2998. United States Court of Appeals, Ninth Circuit. March 30, 1981. James M. Sattler, Honolulu, Hawaii, for claimant-appellant. Barry Grossman, Daniel J. Conway, Washington, D. C., for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before SKOPIL, FLETCHER and PREGERSON, Circuit Judges. PREGERSON, Circuit Judge: 1 On January 16, 1973, the United States Attorney for the District of Hawaii obtained a warrant of arrest in rem, directing the United States Marshal to seize a diathermy machine and accompanying leaflets belonging to appellant, Dr. Ralph B. Cloward, a Honolulu neurosurgeon. The propriety of the procedure used to obtain that warrant is the subject of this appeal. We agree with appellant's contention that, in the circumstances of this case, the challenged procedure violated the Fourth Amendment. 2 The authority for the seizure of appellant's diathermy machine stemmed from the Food, Drug, and Cosmetic Act,…