United States v. An Article of Device Consisting of One Device, More or Less, Labeled in Part: (front) Theramatic

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.

The authority for the seizure of appellant’s diathermy machine stemmed from the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-92 . At the time the warrant directing the seizure was obtained, section 304(a)(1) of that act, 21 U.S.C. § 334 (a)(1), provided for seizure of any “adulterated or misbranded” medical device shipped in interstate commerce. 1 Section 304(b) stipulates that, except for the availability of jury trials, the procedure for seizures under the act “shall conform, as nearly as may be, to the procedure in admiralty,” 21 U.S.C. § 334 (b). Accordingly, the procedure used to seize appellant’s machine was that laid down by Rule C of the Supplemental Rules for Certain Admiralty and…