(dissenting).
I agree with the majority that the district court’s factual findings should not be disturbed. However, I disagree with the majority’s interpretation of the Tariff Act of 1930 and its conclusion that Molt’s consent to search was involuntary as a matter of law. I, therefore, dissent.
The majority holds, as did the district court below, that Agent O’Kane misrepresented his authority when he told Molt that he could obtain a warrant if Molt did not consent to the search. According to the majority, this statement was coercive because the agents had no such right.
Title 19, United States Code, § 1511 (1970) provides that:
If any person importing merchandise into the United States or dealing in imported merchandise fails, at the request *1253of the Secretary of the Treasury, or an appropriate customs officer, or the United States Customs Court, or a judge of such court, as the case may be, to permit a duly accredited officer of the United States to inspect his books, papers, records, accounts, documents, or correspondence, pertaining to the value or classification of such merchandise, then while such failure continues the Secretary of the Treasury, under regulations prescribed by him, (1) shall prohibit the importation of merchandise into the United States by or for the account of such person, and (2) shall instruct customs officers to withhold delivery of merchandise imported by or for the account of such person. If such failure continues for a period of one year from the date of such instructions the appropriate customs officer shall cause the merchandise, unless previously exported, to be sold at public auction as in the case of forfeited merchandise.
Although no court, other than the court below, has ever construed this statute, the majority simply concludes:
[Cjustoms agents acting under § 1511 have no right or authority to inspect records without a citation or warrant; they may simply request the opportunity to do so. If the request is denied, the government’s only remedy is to prohibit further importation. There is no statutory means of compelling disclosure of the records under §§ 1509 — 11.
Ante, at 1250.1 Here, as well as in at least three other places in its opinion, the majority endorses and announces as the law of this Circuit the district court’s holding that customs agents may not seek an administrative search warrant pursuant to §§ 1509-11.2 This holding is critical to the majority’s conclusion that the agent’s “threat” to obtain a warrant was a misrepresentation of his authority and invalidated Molt’s consent. Yet, this conclusion is reached without discussion of an entire line of Supreme Court decisions authorizing administrative warrants in similar contexts, and another line of Supreme Court decisions holding that in certain closely regulated industries such warrants may not even be required.
It is true, as the majority points out, that counsel did not address these cases. Ante, at 1252, fn. 4. However, to state that the dissent has “injected” them into the case is to imply that this Court is bound by counsel’s view of the law. Unlike a concession of fact, a concession of law or the failure of counsel to cite authorities does not bind judges. Regardless of counsel’s actions, this Court is obligated to address applicable precedents.3 The law we make reflects the reasoned decision of this Court and not merely the level of advocacy before it.
*1254Since as early as 1886 until as recently as this past term, the Supreme Court has attempted to delineate the circumstances under which a warrant may be required for an administrative search, and, where a warrant is required, the standards for obtaining one. The majority’s conclusion that the customs agents not only had no right to inspect Molt’s records, but that they could not even obtain a warrant is, I submit, untenable in light of these decisions. In any event, and with all due respect, I do not understand the majority’s failure to even discuss these cases.
The “governing principle” in the area of administrative searches, see Frey v. Panza, 583 F.2d 113 (3rd Cir. 1978), was set forth in Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 730 (1967) in which the Supreme Court stated that:
[E]xcept 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 search warrant.
Specifically, the Court there held that the Fourth Amendment prohibits the warrant-less search of a personal residence to determine compliance with housing codes. This holding was extended in See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) to prohibit warrantless searches of private commercial premises. In both cases, there were municipal ordinances which, like the statute here, gave officials broad powers to inspect and provided penalties for failure to permit inspection. Neither of those ordinances provided for a warrant. Nevertheless, the Court not only read into those ordinances the right to obtain a warrant to search, it further indicated that the standard for obtaining such a warrant is not the “probable cause” required for criminal searches. The standard is merely whether there is “a valid public interest [which] justifies the intrusion . ” Camara, supra, 387 U.S. at 539, 87 S.Ct. at 1736, in the case of commercial premises, the standard is a flexible one “of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved . . . ” See v. City of Seattle, supra, 387 U.S. at 545, 87 S.Ct. at 1740. This flexible standard has been reiterated by the Court as recently as in this past term. See Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942,1948, 56 L.Ed.2d 486 (1978); Marshall v. Barlows, 436 U.S. 307, 98 S.Ct. 1816, 1824-25, 56 L.Ed.2d 305 (1978).
These decisions cast grave doubt upon the majority’s conclusion that the agents could not have obtained a warrant to search Molt’s records. If the majority rests its conclusion on the ground that the inspection procedures as set forth at 19 U.S.C. §§ 1509-11 are exclusive and do not permit the issuance of a warrant, such a conclusion would be inconsistent with the Supreme Court’s decisions in Camara and See. If the majority rests its conclusion on lack of probable cause, then, I submit, such a conclusion should have been framed in terms of the flexible requirements for a warrant set forth by the Supreme Court.
Apart from the question whether the agent misrepresented his authority to obtain a warrant, I question further whether a warrant was even necessary in light of United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) and Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). Those cases recognize an exception to the warrant requirement in industries which are so “closely regulated” that an entrepreneur who embarks on such an enterprise “has voluntarily chosen to subject himself to a full arsenal of governmental regulation” and, therefore, has no reasonable expectation of privacy. Marshall v. Barlows, supra, 98 S.Ct. at 1821.
Industries such as these fall within the “certain carefully defined classes of cases,” referenced in Camara, supra, 387 U.S., at 528, 87 S.Ct. [1727] at 1731. . . The element that distinguishes these enterprises from ordinary businesses is a long tradition of close government supervision, of which any person who chooses to enter such a business must already be *1255aware. “A central difference between those cases [Colonnade and Biswell] and this one is that businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of their trade, whereas the petitioner here was not engaged in any regulated or licensed business. The businessman in a regulated industry in effect consents to the restrictions placed upon him.” Almeida-Sanchez v. United States, 413 U.S. 266, 271 (93 S.Ct. 2535, 2538, 37 L.Ed.2d 596) . . . (1973).
Id. Here, the long history of government regulation over customs and importation which, as detailed in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), predates the Constitution itself, suggests that the search here might well fall within the Colonnade-Biswell exception to the warrant requirement. Yet, neither the district court nor the majority considers this possibility.
At the very least, then, as a matter of law, the rights of the agents were far from clear. A constitutional scholar, even a customs agent, might not be able to fully comprehend the decisions of the.Supreme Court in the area of administrative searches. Indeed, the district judge found as a fact that the agents acted in good faith, that is, that “they did not deliberately misstate their authority to Molt.” 444 F.Supp. at 498. The majority accepts this finding and I agree. I am constrained to add, however, that any other finding would have been highly inappropriate given the state of the law and the dearth of judicial interpretation of § 1511.
Finally, I disagree most strenuously with the finding of the district court, affirmed by the majority, that, although the agents acted in good faith, their misrepresentations
so pervaded the atmosphere at the Exchange as to make Molt believe he had no choice but to submit to the agents’ search. . . . This was not knowing and voluntary consent, but a surrender to a totally inappropriate assertion of authority.
444 F.Supp. at 496. (Emphasis supplied).
It is well-settled that a warrantless search is reasonable under the Constitution if consent is given freely and voluntarily. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Matlock, 415 U.S. 164,94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States ex rel. Harris v. Hendricks, 423 F.2d 1096 (3rd Cir. 1970). “[Wjhether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth, supra, 412 U.S. at 227, 93 S.Ct. at 2047. “[I]t is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced.” Id., at 233, 93 S.Ct., at 2050.
The totality of the circumstances here, based on the facts found below, compels the conclusion that the consent was voluntary as a matter of law. Defendant Molt is a college-educated businessman who frequently travels overseas. On June 14,1975, two United States Customs Agents and a local detective went to Molt’s place of business, the Philadelphia Reptile Exchange, to examine his importation records. Molt questioned the agents’ authority to inspect his records and the agents responded by showing him a copy of 19 U.S.C. §§ 1509,' 1510 and 1511. Molt read the statutes and indicated that he had no objection to an inspection, but that he found it hard to believe that the agents could search his' records without a warrant and that he1 wished to consult his attorney. While waiting for his attorney to return his call, Molt asked the agents what would happen if he didn’t consent. The response was:
“Let me make it clear to you. Number one, you are not under arrest. Number, two, you are not being detained. You are not under any rule or order to show us your records and you could tell us to get *1256out of your store and we’ll have to go.” And I said, “But if I do leave,” I said, “It will be for the purpose of getting into my car, going down to the city, obtaining a warrant, come (sic) back and examine your Customs importation records.” (N.T. 1-20).
When Molt’s attorney finally called, the agent spoke to him; cited the same statutes he had shown to Molt; told him that as far as he knew Molt had committed no offense, and that he would leave if so requested, but that he would then obtain a warrant. The agent added that, while he was authorized to conduct an examination even without a warrant, “I can leave somebody here to keep this place under surveillance, go back and get the paperwork and come here and do what I have to do.” (N.T. 1-160), Id. Molt then got on the phone and told his attorney that he had nothing to hide, and his attorney advised him that he might as well let the agents examine the records. Upon this advice, Molt consented to the search.
Based on these facts, I simply cannot agree with the district court and the majority that the agents’ “misrepresentations” so pervaded the atmosphere as to vitiate Molt’s ability to voluntarily consent to the search. Exactly what was this pervasive “misrepresentation?” According to the district court, it was the agents’ “threat” to obtain a warrant, made in the good faith belief that they had the right to obtain one. I do not understand how this can be construed as a threat. An agent’s statement that he intends to get a warrant does no more than inform the citizen that the agent will endeavor to obtain whatever judicial process he is entitled to. It is a “threat” only to the extent that it “threatens” the citizen that the agent will go to court, appear before a neutral magistrate, swear under oath that he believes the citizen may have violated the law, and await the magistrate’s decision whether a warrant will issue. -Such a “threat” can never be coercive, if all that is “threatened” is that the agent will repair to a courthouse to obtain legal process. If anything, it is a representation by the agent that, at that time, he has no authority to search, and thus must make application to the appropriate legal authority-
Other courts, in post-Schneckloth opinions mentioned neither by the district court nor by the majority, have held such statements insufficient to invalidate an otherwise voluntary consent to a search. See, e. g., United States v. Tortorello, 533 F.2d 809 (2nd Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976); United States v. Faruolo, 506 F.2d 490 (2nd Cir. 1974); United States v. Gavie, 520 F.2d 1346 (8th Cir. 1975); United States v. Agosto, 502 F.2d 612 (9th Cir. 1974). Although, obviously, these cases do not bind this Court, these circuits have thus rejected the rule today announced by this Court. Henceforth, as I read the majority opinion, when an agent says “I will get a warrant” and then obtains consent, the search must be invalidated if the agent could not have gotten the warrant, even if he had a good faith basis for that belief.
Moreover, even apart from the agent’s statement, I am at a loss to see exactly what evidence there was that Molt’s will was overborne. Before the agent “threatened” Molt, he warned him that he had the right to refuse to consent, a warning which is not even required under Schneckloth. Having been exposed to this “threat”, Molt then consulted his lawyer, telling him he had nothing to hide. Molt’s attorney, having been cited the statutes under which the agents claimed authority to search, advised him to consent. Under these circumstances, it is difficult to see exactly whose will was overborne here. Was it Molt’s? His lawyer’s? If it was Molt’s will that was overborne, exactly who overbore it? The agents by their statements to Molt? Molt’s lawyer whose advice was based on Molt’s misrepresentations to him?
The majority states that “[t]o overturn the district court’s finding would be tantamount to holding that, as a matter of law, consent based on an attorney’s advice must be voluntary.” Ante, at 1252. I do not see why that result should offend, or, absent *1257unusual circumstances involving governmental bad faith not here involved, how any other result is tenable under Schneckloth v. Bustamonte, and the recent Supreme Court decision in United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Molt’s consent here was, in my view, voluntary as a matter of law.
In Schneckloth a finding of voluntary consent was affirmed on facts far more compelling than these. The defendant in that case was a relatively uneducated man who, while driving with friends, was stopped by police at 2:40 in the morning. The police ordered the occupants out of the car and, without informing them of their right to refuse consent, asked if they could search- the automobile. Here, by contrast, the defendant is a well-educated man, obviously familiar enough with the law to express an' opinion on the agents’ right, to search without a warrant and to realize that he could and should consult an attorney. Molt dealt with the agents on his own territory in the late afternoon under circumstances where it was clear he was not under arrest. He was given a full warning of his right to refuse consent.
In Watson the Supreme Court reversed a finding of involuntary consent. In that case, the defendant consented to a search of his car after the police had placed him under arrest and searched his person, and without receiving a warning that he had the right to refuse consent. The Supreme Court noted that,
There was no overt act or threat of force against Watson proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance. There is no indication in this record that Watson was a newcomer to the law, mentally deficient, or unable in the face of a custodial arrest to exercise free choice.
423 U.S. at 424-25, 96 S.Ct. at 828. (footnote omitted). Unlike Watson, Molt was not under arrest. Unlike Watson, Molt was informed that he need not consent. Unlike Watson, who was without counsel, Molt consulted his lawyer who then spoke with the agents and advised consent. Under these circumstances the majority here holds that Molt’s will and, presumably his lawyer’s as well, was overborne because the agents threatened to seek a warrant if Molt did not consent to a search.
Absent a finding that the agents, acting in bad faith, affirmatively lied to either Molt or to his attorney, the finding of involuntariness is totally inconsistent with Schneckloth and Watson. Molt sought and obtained legal advice from counsel of his own choosing; yet, the majority would make the lay agents the guarantors of the soundness of this legal advice — and that assuming the advice was wrong. In fact, the advice was predicated upon Molt’s deception of his own lawyer when he told him he had nothing to conceal. In any event, Molt’s mendacity aside, in my view, the agents had every right to obtain the warrant which they “threatened” to seek.
The only remaining questions concern the propriety of the seizure of Molt’s records and the January 22,1975 search pursuant to a warrant based on information obtained in the first search and seizure. The district court’s invalidation of both the seizure and the subsequent search was based upon its* finding that Molt did not freely consent to the initial search. The district judge does state, in his opinion, that even if Molt’s consent had been voluntary, the seizure was unlawful. 444 F.Supp. at 497. However, the judge apparently did not consider whether either the “plain view” or “exigent circumstances” doctrines might justify the seizure if the search were voluntary. Thus, I would reverse on the issue of the validity of Molt’s consent and remand for further findings on the legality of the seizure and the second search.
Herbert J. Stem, United States District Judge, District of New Jersey, sitting by designation.
. Under a Hohfeldian analysis of rights, duties and privileges, if the importer has a duty to show his records, an agent has a “right” to see them.
. The majority correctly notes that § 1595 is not before us. Neither was it before the district court. Section 1595 has nothing to do with warrants for records.
. See, e. g., Walker Mfg. Co. v. Dickerson, Inc., et al., 560 F.2d 1184 (4th Cir. 1977), in which the Fourth Circuit stated:
Ordinarily, of course, we do not pass on questions that were not presented to or considered by the district court, but orderly rules of procedure do not require sacrifice of the rules of fundamental justice. “Indeed, if deemed necessaiy to reach the correct result, an appellate court may sua sponte consider points not presented to the district court and not even raised on appeal by any party.” . [A]nd it has been said that an exception to the general rule of non-reviewability exists where a pertinent statute has been overlooked in the trial court.
Id., at 1187, n.2. (Citations omitted). See also, this Court’s statements in United States v. Moore, 444 F.2d 475, 476 (3rd Cir., 1971):
The dissenting opinion also suggests that since the District Court applied the law of the state of the Moore family domicile at the time of the accident and since neither party challenged in this court the District Court’s application of this rule, we should accept this as the binding law of the case. Thus, the dissent implies that, in reaching our decision as to the applicable law, we should blindly apply a rule of law enunciated by the District Court even if this rule is incorrect. This is, indeed, a novel proposition. The function of our court is to decide cases by applying “correct” rules of law to facts determined by the District Court.