DocketNumber: Docket No. 9680-74
Judges: Goffe
Filed Date: 3/18/1976
Status: Precedential
Modified Date: 10/19/2024
*145 After this case was set for trial and an evidentiary hearing scheduled on whether petitioner's constitutional rights guaranteed by the
Petitioner was physically searched at Kennedy Airport as he departed on an airplane leaving the United States at which time $ 20,000 in cash was discovered on his person. Petitioner was required to execute Form 4790, "Report of International Transportation of Currency or Monetary Instruments." The search prompted an investigation of petitioner's income tax returns which ultimately led to the instant case. The identity of petitioner's bank on the Form 4790 was not used by agents of the Commissioner in their investigation of petitioner*146 for income tax evasion.
The initial interview of petitioner as to the investigation of his income tax returns was conducted by special agents of the Commissioner early in the morning at petitioner's residence without advance warning simultaneous with an initial interview of petitioner's accountant who prepared petitioner's income tax returns.
*1124 The Commissioner determined the following deficiencies in income tax and addition to tax against petitioner:
Taxable | Deficiency | Addition to tax | ||
year | in tax | sec. 6653(b) 1969 | $ 20,554.10 | $ 10,277.05 |
1970 | 11,506.63 | 5,753.32 | ||
1971 | 6,624.07 | 3,312.04 | ||
1972 | 56,999.56 | 28,499.78 |
*148 Petitioner included in his petition allegations that his constitutional rights were violated. Shortly after respondent filed his answer, petitioner filed numerous motions *1125 protective order; we granted petitioner's motion for production of documents relating to the hearing to be held in New York City; we ordered respondent to turn over to the Court its files for an in camera inspection; we examined the files in camera and served the parties with the portions of respondent's files which we deemed appropriate for petitioner's use for the evidentiary hearing set for New York City.
*149 The evidentiary hearing was held in New York City after which we served the parties with findings of fact and directed them to file memoranda of law.
The proceedings up to this point present the following issues: (1) Should the discovery proceedings in the Tax Court be suspended pending final disposition of the indictment for income tax evasion brought against petitioner; (2) were petitioner's rights guaranteed under the
FINDINGS OF FACT
Some of the facts have been stipulated and are found accordingly. The stipulation of facts and the attached exhibit are incorporated by this reference.
John W. Singleton (hereinafter petitioner) *150 resided at 488 North Woodland Street, Englewood, N.J., at the time he filed his petition in this proceeding. Petitioner timely filed Federal income tax returns for the periods here involved with the following Internal Revenue Service Centers:
TYE Dec. 31 -- | Service Center |
1969 | Andover, Mass. |
1970 | Andover, Mass. |
1971 | Philadelphia, Pa. |
1972 | Holtsville, N.Y. |
On the morning of December 7, 1972, petitioner arrived at the BOAC terminal of John F. Kennedy International Airport for the *1126 purpose of boarding a flight to Jamaica. Petitioner first checked his baggage at the Air Jamaica counter; when his flight was called, he proceeded to the designated departure gate by means of the north ramp of the terminal.
The following diagram depicts the north ramp of the BOAC terminal as it appeared on December 7, 1972:
[SEE ILLUSTRATION IN ORIGINAL]
At the base of the north ramp was stationed a BOAC employee who checked each passenger's boarding pass, denying access to the *1127 ramp to any person not possessing such a pass. On the podium next to the official was a sign, 9-by-11 inches in size located 3 feet above the floor facing approaching passengers, indicating that*151 all baggage would be searched prior to boarding and that all passengers would be required to demonstrate that they were carrying no lethal weapons. Passengers proceeding up the ramp toward the flight gates were required to walk to either side of a partition beyond which were located tables on which carry-on baggage was placed for inspection. On the wall at one end of the tables were two 11-by-14-inch signs provided to all carriers by the FAA. The signs, one in English and one in Spanish, stated that carrying concealed weapons aboard an aircraft is punishable by prison sentences and fines and that all passengers and baggage were subject to search. They were printed in red and blue letters 1 1/2 inches in height. The searches of the carry-on luggage were conducted by employees of the U.S. Customs Service. After customs officials were satisfied that carry-on baggage contained no weapons, it was placed on tables directly behind them where it could be claimed by its owner. After picking up their luggage at these tables, the passengers were searched for weapons. The personal searches were conducted behind either of two portable screens located approximately 10 feet beyond the tables. *152 All passengers were frisked by customs officials.
When petitioner's boarding pass was checked at the base of the ramp, he did not notice the sign on the podium; nor did he notice the signs on the wall at one end of the inspection tables where his carry-on baggage, a small airline bag, was searched. After his airline bag was inspected, he was required to walk behind one of the portable screens where he was frisked. The frisking officer, a U.S. Customs Service employee, passed his hands over petitioner's body from his feet upward. Upon feeling something in the breast pockets of petitioner's suit coat, he opened the coat which was previously unbuttoned by petitioner and removed petitioner's passport and a transparent plastic envelope containing currency from each pocket. Each envelope was approximately 2 1/2 inches wide, 6 inches long, and 1/4- to 1/2-inch thick and contained 100 new $ 100 bills fastened with bank wrappers. The packets had been inserted in petitioner's coat pocket vertically and the tops of the packets of money did not extend above the upper edge of each coat pocket. After the two parcels of cash were removed, petitioner was told to "Wait here." *1128 The*153 officer soon returned with a second customs official at which time petitioner was required to sign Form 4790, entitled "Report of International Transportation of Currency or Monetary Instruments." That form indicated that the source of funds being transferred out of the United States was "Chemical Bank -- NY." The packets of cash were returned and petitioner was allowed to board his flight. Petitioner had previously flown from Kennedy Airport to Jamaica in March 1972.
The purpose of the search procedure in December 1972 was to prevent passengers from carrying on to aircraft firearms, dangerous knives, swords, explosive devices, or other lethal weapons capable of being used to hijack an aircraft. The procedures in effect at the BOAC terminal in December 1972 required a physical search of all hand-carried luggage and hand "frisking" of all departing passengers.
During the period December 1, 1972, through April 1973, Special Agent Robert Mongelli was assigned by his supervisor in the Intelligence Division of the Internal Revenue Service to a detail at the Customs Service. This assignment required him to visit the Financial Unit of the U.S. Customs Service in New York City where he*154 would examine Forms 4790. The purpose of the examination of these forms was to find leads for the initiation of tax investigations.
Around the end of January 1973, Special Agent Mongelli discovered in the records of the Customs office the Form 4790 dated December 7, 1972, bearing the signature of petitioner. Prior to discovering this form, Special Agent Mongelli had no knowledge whatsoever of petitioner, his activities, or his background. Nor was petitioner at the time of such discovery the subject of any investigation by the Internal Revenue Service. It was only after the discovery of the Form 4790, and as a result of the discovery, that Special Agent Mongelli began gathering background information concerning petitioner.
Special Agent Mongelli selected the Form 4790 signed by petitioner because of knowledge of two tax fraud investigations involving individuals who resided on the same street as petitioner and because of the amount of $ 20,000 which the form indicated petitioner took out of the United States. The Form 4790, in addition to showing the name and address of petitioner and the sum of money taken out of the United States by him, reflected his passport number and country, *155 his "title" as "restaurant *1129 owner," date of birth, and in the space designated "the name of person from whom the currency or monetary instrument was received" the words "Chemical Bank -- NY" were inserted.
Upon completion of the information gathering activity regarding petitioner, Mongelli forwarded the report of his findings, along with the Form 4790, to the U.S. Treasury Target Selection Committee which then authorized the Intelligence Division of the Internal Revenue Service to initiate a criminal tax investigation of petitioner. Following such authorization, the criminal tax investigation of petitioner was, on September 13, 1973, assigned to Special Agent Heriberito Collazzo of the Intelligence Division of the Manhattan District Office of the Internal Revenue Service.
When Collazzo received the file on petitioner, he reviewed it and decided that it was not complete enough to commence an investigation because petitioner's income tax returns were not in the file. He, therefore, requisitioned the returns. Collazzo headed a team of special agents which included Special Agents Garrett Howard and Anthony Mannherz who, together with Revenue Agents Martin Kenneally and John*156 Spadola, performed the major portion of the income tax investigation of petitioner. None of the agents of the Internal Revenue Service contacted Chemical Bank in New York City as to petitioner's accounts in that bank until after petitioner was interviewed in his home. The item of information on Form 4790 indicating that Chemical Bank, New York, to be the source of the $ 20,000 taken out of the United States by petitioner, was not utilized by the Internal Revenue Service in their investigation of petitioner for income tax evasion. The primary purpose in not contacting any banks in which petitioner might have accounts prior to the personal interview of petitioner was that the agents found in their practice that it was more expeditious to obtain bank records from the taxpayer than from a bank. A secondary reason, in this case, was that the agents feared that petitioner might be tipped off as to the investigation prior to the interview.
Acquiring information as to petitioner's accounts at Chemical Bank was based upon his original income tax returns on file with the Internal Revenue Service and upon the initial interview by Special Agents Howard and Mannherz with petitioner at his *157 residence on December 11, 1973. Neither Special Agent Howard nor Special Agent Mannherz was aware that the Form 4790 was *1130 obtained from petitioner as a result of a search of him at Kennedy Airport until after they completed their investigation in the autumn of 1974.
At approximately 7 a.m. on December 11, 1973, Special Agents Howard and Mannherz arrived in front of petitioner's home to interview him as part of the criminal investigation. The motive for their early arrival was twofold: (1) Previous surveillance having revealed the time range during which petitioner normally left for work, they knew that they had to arrive early in order to interview him at his home which would be free of the distractions normally inherent in an interview at one's place of business; and (2) they desired to conduct the interview at a time when they knew petitioner would be unprepared. At 8:05 a.m., approximately 20 minutes after first observing signs that petitioner had awakened, Special Agents Howard and Mannherz rang his front doorbell. After petitioner opened the front door, the two agents showed their identification, identified themselves as special agents of the Intelligence Division*158 of the Internal Revenue Service, and requested that they be admitted to discuss petitioner's financial affairs and have him identify some of his income tax returns. Petitioner, appearing apprehensive at first, granted their request. While walking toward the living room of petitioner's home, petitioner asked the agents the purpose of their visit. Special Agent Howard told petitioner that he was the subject of a criminal investigation. After being seated, Special Agent Howard read petitioner his constitutional rights from a card, the contents of which are as follows:
IRM 9384.2(2)(a)(b) -- At the outset of your first official meeting with the subject of an investigation --
Identify yourself as a special agent of IRS and produce authorized credentials.
"As a special agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue laws, and related offenses."
"In connection with my investigation of your tax liability (or other matter) I would like to ask you some questions. However, first I advise you that under the
*1131 The functions of a special agent were then explained to petitioner, after which petitioner was asked if he understood the meaning of what had been read to him. Petitioner mumbled, at which time Special Agent Howard repeated the question. Petitioner replied that he did. Petitioner was then told that he was in no way restrained in his freedom of movement and that they would leave at his request. The interview lasted until 9:50 a.m. At the same time petitioner was being interviewed, Morris Butcher, petitioner's accountant, was being interviewed concerning petitioner's affairs.
Special Agent Howard prepared a memorandum of contact of the interview with petitioner in which he reported that petitioner stated he maintained the following bank accounts:
Bank | Type of account | Name |
Chemical (143 St. | ||
& Amsterdam) | Business-Checking | John Wesley, Inc. |
Chemical | Personal-Checking | John W. Singleton |
Chemical | Savings-Personal | John W. Singleton |
Chemical | Checking-Business | John W. Singleton |
(jukebox business) | ||
Carver Savings & Loan | Savings-Personal | John W. Singleton |
Chemical | Checking-Business | 2268 8th Ave. Realty |
Chemical | Checking-Business | B.J. Car Services |
*160 At the time Agent Mongelli worked on the investigation of petitioner, he was not aware that the Form 4790 had been obtained as a result of a "frisking" of petitioner. Nor were Agents Howard and Mannherz aware of that fact until some time after they interviewed petitioner at his residence.
A jeopardy assessment was made against petitioner on August 9, 1974, and payments of income taxes and additions to tax, arising from service of notices of levy and seizures of property, were made during the month of August 1974. A notice of deficiency, setting forth income tax deficiencies and additions to tax for fraud, aggregating $ 143,526.55, for the taxable years 1969 through 1972, was mailed to petitioner on September 20, 1974. Petitioner subsequently timely filed his petition in this proceeding on December 11, 1974.
On March 10, 1975, petitioner filed a "Motion for an Order Granting to the Petitioner Judgment on the Pleadings; Dismissing the Case; and Determining That There are No Deficiencies in Income Tax and No Penalties Due From Petitioner" and a "Motion for An Order Granting a Hearing to Determine Whether *1132 Petitioner's Rights, Guaranteed by the Constitution and by Decisional*161 Law, Were Violated and, If So, Dismissing this Case and Suppressing All Tainted Evidence Flowing From the Illegality." After a hearing on the motions before Commissioner Randolph F. Caldwell, Jr., on April 9, 1975, the first motion was taken under advisement and a decision on the latter motion was reserved pending the outcome of the first. Both motions were denied by Commissioner Caldwell in an order dated August 4, 1975. In a memorandum sur order, referred to in his order of August 4, 1975, Commissioner Caldwell made the following observations (p. 5):
The
After due consideration, we are persuaded that the hearing should await the calendaring of the case for trial.
On August 26, 1975, petitioner filed a "Motion for Reargument and for Reconsideration, by the Chief Judge of This Court or by*162 the Entire Court, of the Order of Commissioner Randolph F. Caldwell, Jr., dated August 4, 1975." On September 2, 1975, petitioner filed his reply and on the same date he filed a "Motion for An Order That This Case be Calendared for an Early Trial." A hearing on both motions was held in Washington, D.C., on October 8, 1975, before Chief Judge Howard A. Dawson, Jr. By an order dated October 30, 1975, Chief Judge Dawson denied the motion for reargument and reconsideration and granted the motion to calendar the case for early trial, setting the case for trial at the session of the Court to be held at New York City beginning March 22, 1976.
On November 13, 1975, petitioner filed a "Motion to Compel Production of Documents Pursuant to Rule 72(b) of the Rules of Practice and Procedure of this Court" and a "Motion for An Order Granting a Hearing to Determine Whether Petitioner's Rights, Guaranteed by the Constitution and by Decisional Law, Were Violated, and if so, Dismissing this Case and Suppressing All Tainted Evidence Flowing From the Illegality." A hearing on the two motions was held in Washington, D.C., on December 10, 1975. By an order of the same date, the motion for production *163 of documents was denied, the motion for hearing on whether *1133 petitioner's constitutional rights were violated was granted, and a hearing was set for January 6, 1976, in New York City. On December 22, 1975, petitioner filed a "Motion for Reconsideration of the Order of Judge William A. Goffe, on December 10, 1975, to the Extent That It Denied Production of Documents, Which Are Relevant to the Issues Involved in the Hearing Which Has Been Scheduled for January 6, 1976, and, Upon Reconsideration, to Order Production of Those Documents." On December 23, 1975, an indictment was filed in the United States District Court for the Southern District of New York, charging petitioner with unlawfully and willfully attempting to evade his individual income taxes for the taxable year 1969 in violation of
OPINION
The first issue is procedural. During the discovery process, after numerous hearings and after the case was at issue, respondent filed a motion for protective order requesting that we stay further proceedings pending the final disposition of a criminal indictment returned against petitioner the previous week. We denied respondent's motion for protective order.
The petition in this case was filed on December 11, 1974. Because of the time required for disposition of issues raised by petitioner in motions filed after respondent filed his answer, the reply was not filed until September 2, 1975, which, under our rules, is the time that the case was at issue. On October 30, 1975, the case was set for trial in New York City on March 22, 1976. Petitioner was indicted for income tax evasion on December 23, 1975.
*1134 The indictment of petitioner*165 for income tax evasion covered only the taxable year 1969. The case before us involves deficiencies in income tax and fraud penalties for the taxable years 1969, 1970, 1971, and 1972. A jeopardy assessment was made against petitioner in August 1974 and payments arising from levies and seizures of property pursuant to the jeopardy assessment were made in August 1974.
Respondent's motion for protective order under
The case of
*1135 When respondent filed his motion for protective order there was no evidence as to the extent that the statutory notice of deficiency was based upon evidence illegally obtained; moreover, it was not established whether
That case involved a possible criminal prosecution under consideration by the United States Attorney for the Eastern District of Texas at a time when the taxpayer filed a suit for refund in the Northern District of Texas after which petitioner promptly filed a motion for production of documents in the civil proceeding. The civil proceeding was transferred to the Eastern District of Texas. The Court found that the filing of the suit for refund, or at least the discovery motion, was a tactical maneuver for the taxpayer to gain advance information as to the criminal case. After a hearing, the District Court ordered the Government to turn over its files which it refused to do. The Court then entered judgment in favor of the taxpayer in the civil refund suit. The Government appealed and the Court of Appeals reversed and remanded.
We agree with the Court of Appeals but conclude that the instant case is distinguishable. The court pointed out that the matter is one in the discretion of the trial court, describing that discretion as follows:
(1) There is a clear-cut distinction between private interests in civil litigation and the public interest in a criminal prosecution, between a *169 civil trial and a criminal trial, and between the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. But these distinctions do not mean that a civil action and a criminal action involving the same parties and some of the *1136 same issues are so unrelated that in determining good cause for discovery in the civil suit, a determination that requires the weighing of effects, the trial judge in the civil proceeding should ignore the effect discovery would have on a criminal proceeding that is pending or just about to be brought. The very fact that there is a clear distinction between civil and criminal actions requires a government policy determination of priority: which case should be tried first. Administrative policy gives priority to the public interest in law enforcement. This seems so necessary and wise that a trial judge should give substantial weight to it in balancing the policy against the right of a civil litigant to a reasonably prompt determination of his civil claims or liabilities.
* * *
A litigant should not be allowed to make use of the liberal discovery procedures applicable to a civil suit as a dodge to avoid the restrictions on *170 criminal discovery and thereby obtain documents he would not otherwise be entitled to for use in his criminal suit. Judicial discretion and procedural flexibility should be utilized to harmonize the conflicting rules and to prevent the rules and policies applicable to one suit from doing violence to those pertaining to the other. In some situations it may be appropriate to stay the civil proceeding.
When we denied respondent's motion for protective order we were not operating under the misapprehension which the Court of Appeals described of the District Court. We carefully weighed the various factors and concluded that the matter was discretionary. Initially we point out that we did not permit unlimited discovery but only very limited discovery under the careful*171 scrutiny of our in camera inspection of respondent's files. The discovery was limited to the sole factual situation of showing whether the Commissioner's examination of petitioner's income tax returns resulted from a search of petitioner at Kennedy Airport as he boarded an airplane to leave the United States. Such facts were solely within the knowledge of respondent and petitioner needed the facts to move to suppress illegally obtained evidence if he could show that the airport search was illegal. We set that matter for hearing
Here, as distinguished from
The Court of Appeals in
Respondent points out that once petitioner obtained the evidence which he sought in the civil proceeding he could invoke the
Respondent has cited no cases factually similar to the instant case to convince us that we erred in refusing to grant his motion for protective order and stay our proceedings pending final disposition of the criminal case.
The second issue is substantive. Petitioner contends that the search conducted at Kennedy International Airport on December 7, 1972, was in violation of his rights guaranteed by the
The
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, *176 but upon probable cause, supported by oath or affirmation, *1139 and particularly describing the place to be searched, and the persons or things to be seized.
It is well-settled that evidence obtained in violation of an individual's
Respondent first argues that petitioner implicitly consented to the search by continuing to proceed to board the airplane despite the presence of signs warning of the search and the fact that he saw others ahead of him being frisked. With this theory of consent, we cannot agree. Compelling one to choose between exercising his
Respondent's reliance upon
All baggage is not generally subject to search according to the FAA's directives; rather, only carry-on baggage is generally subject to search. Thus, one is not forced to choose between flying to one's destination and having one's baggage searched. Rather one *178 may merely consign any baggage he does not want searched to the baggage compartment. The only imposition upon the passenger then is not having the bag during the flight and, perhaps, a little wait at the destination for his luggage.
*1140 Preboarding searches of passengers and their carry-on luggage must be tested by the
The search of petitioner was conducted pursuant to a nationwide program to prevent aircraft hijacking. *180 Thus, there is clearly a compelling need to detect the presence of weapons and explosives before they are brought onto an airplane. While this might justify some search of all prospective passengers at an airport, the question becomes whether it will justify, in any given case, the search as carried out and, for this case, the frisk of petitioner. We recognize that a frisk normally involves a gross invasion of one's privacy. In
Courts which have dealt with airport searches have utilized various approaches in ruling on the validity of the search. A number of Federal cases have applied the test of
In
Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages*182 of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
But in order to justify the particular intrusion, the Court held that "the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant that intrusion."
Some courts have utilized approaches other than the *183
Necessity alone, however, whether produced by danger or otherwise, does not in itself make all non-probable-cause searches reasonable. Reasonableness requires that the courts must weigh more than the necessity of the search in terms of possible harm to the public. The equation must also take into account the likelihood that the search procedure will be effective in averting potential harm. On the opposite balance we must evaluate the degree and nature of intrusion into the privacy of the person and effects of the citizen which the search entails. [
*1142 * * *
Our conclusion, after this tripartite weighing of the relevant factors, is that the standards for initiating a search of a person at the boarding gate should be no more stringent than those applied in border crossing situations. In the critical pre-boarding area where this search started, reasonableness does not require that officers search only those passengers who meet a profile*184 or who manifest signs of nervousness or who otherwise appear suspicious. Such a requirement would have to assume that hijackers are readily identifiable or that they invariably possess certain traits. The number of lives placed at hazard by this criminal paranoia forbid taking such deadly chances. * * * we hold that those who actually present themselves for boarding on an air carrier, like those seeking entrance into the country, are subject to a search based on mere or unsupported suspicion. [
The Ninth Circuit, on the other hand, in
As we have seen, however, the need for some limitations upon these rights is clear. In light of that need, a screening of passengers and of the articles that will be accessible to them in flight does not exceed constitutional limitations provided that the screening process is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that purpose, and that potential passengers may avoid the search by electing not to fly. [Fn. ref. omitted.
The Third Circuit, the Court of Appeals to which an appeal from our decision herein will lie, has applied the
Assuming arguendo the legality of the initial "patdown" of petitioner, we find that the removal of the packets of currency from the inside pockets of petitioner's coat exceeded the scope of the search*187 permissible under the circumstances. "The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation possible."
"A permissible search is an inspection of that which may
We must now decide what evidence, if any, must be suppressed as a result of our holding that the airport search was conducted in violation of petitioner's
Petitioner, relying primarily upon the decisions in
If illegally secured information leads the government to substantially intensify an investigation, all evidence subsequently uncovered has automatically "been come at by exploitation of that illegality." The*192 unlawful search has set in motion the chain of events leading to the government's evidence.
Petitioner maintains on the basis of this language that if an investigation is not merely intensified, but is initiated as a result of an illegal search, all evidence has been arrived at by exploitation of that illegality and must be suppressed.
The language from
It seems not to be sufficiently realized that the
We conclude that
Moreover, the argument that evidence is tainted merely because it would not have been discovered
Petitioner contends that under
Hence this is not the case envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence "from an independent source,"
The Court then faced the question of whether Wong Sun's unsigned confession was "fruit" of his illegal arrest. Based upon evidence that Wong Sun had been released on his own recognizance after a lawful arraignment and had returned voluntarily several days later to make the statement, the Court held that the "connection between the arrest and the statement had become so attenuated as to dissipate the taint," citing
On the basis of the Court's holding with respect to Toy, petitioner maintains that "all evidence in a chain causally connected to and derived from illegally obtained evidence must be suppressed." Respondent, on the other hand, maintains this case is controlled by the following principle set forth in the Supreme Court's decision in
Sophisticated argument may prove a causal connection between information*199 obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint. [
We agree with respondent and hold that the connection between the illegal search and the evidence to be introduced at trial has "become so attenuated as to dissipate the taint."
In reaching our conclusion, we have considered each item of information on the Form 4790 and have examined the use up to the time of the interview of petitioner when more detailed evidence was obtained. For purposes of analysis, the items of information can be broken down primarily into three categories: (1) Items relating to the identity of the taxpayer, such as his name, address, citizenship, and passport number; (2) the source of the $ 20,000, i.e., Chemical Bank -- NY.; and (3) the amount of cash on his person at the time of the search.
First, respecting the items relating to petitioner's identity, we are convinced that it would be stretching the exclusionary rule beyond reasonable bounds to hold in every case in which the identity of an individual is somehow illegally obtained that*200 all information subsequently acquired must be suppressed. In
Second, we must ascertain whether respondent's agents exploited the lead on the Form 4790 relating to the source of the funds, i.e., "Chemical Bank -- N.Y." *201 After hearing the testimony of the agents who participated in the tax investigation of petitioner, we are satisfied that no use was made of this particular lead. The agents issued summonses for petitioner's records at Chemical Bank only after the interview of December 11, 1973, based upon petitioner's income tax return and the interview. In
Third, with respect to the amount of cash shown on the Form 4790, the illegal search of December 7, 1972, could not have *1150 picked up leads to the alleged fraudulent understatement of income which did not occur until a future date, i.e., the date he filed his 1972 Federal income tax return.
The fact situation of the instant case clearly constitutes one of those situations visualized by the Court in
Finally, our holding that respondent's proof is not tainted by the illegal search rests upon our failure to recognize what policy considerations would be served by suppressing any evidence obtained as a result of the search. The primary purpose of the exclusionary rule is to deter unlawful police conduct and compel respect for the guaranty of the
*1151 We now turn to petitioner's contention that his
Petitioner first maintains that respondent's agents failed to comply with certain procedures published in I.R.S. News Release No. 949 (Nov. 26, 1968), thus violating his right to*205 due process of law under the
Petitioner relies upon the decision of the Seventh Circuit in
In short, the decision in
Under our holding in
*209 Accordingly, we hold that none of respondent's evidence is tainted by the illegal airport search or the interview of petitioner at his residence. None of respondent's evidence will be suppressed *1153 and no constitutional grounds exist for shifting the burden of going forward with the evidence to respondent.
1. All Code section references are to the Internal Revenue Code of 1954, as amended.↩
2. The motions relevant here are described in detail in our findings of fact.↩
3. See
4. See
5. Once petitioner "has presented a prima facie case of illegal search, the government must assume the burden of proof that any search made was lawful."
6.
Nardone v. United States ( 1939 )
United States v. Francis D. White and Gertrude W. White ( 1969 )
United States v. Mozelle Williams ( 1975 )
United States v. Burdick ( 1954 )
United States v. Schipani ( 1968 )
United States v. Adam Bagdasian ( 1968 )
Silverthorne Lumber Co. v. United States ( 1920 )
United States v. Cecil Kenton Epperson ( 1972 )
United States v. Robert Paul Doran ( 1973 )
United States v. Edward A. Slocum ( 1972 )
United States v. Donald A. Brandon ( 1972 )
Commissioner of Internal Revenue v. Peter Licavoli ( 1958 )
Jack E. Golsen and Sylvia H. Golsen v. Commissioner of ... ( 1971 )
United States v. Frank A. Jaskiewicz ( 1970 )
United States v. Alice E. Leahey ( 1970 )
United States v. Theron Clark ( 1974 )
United States v. Gerald Frank Kroll ( 1973 )
United States v. Roosevelt Oliver ( 1974 )