The opinion of the court was delivered by: CLARY
On February 19, 1953 an Indictment in four (4) counts was filed against the defendant charging him with the wilful attempt to defeat and evade Internal Revenue Laws of the United States for the years 1946, 1947, 1948 and 1949, in violation of 26 U.S.C. § 145(b). On February 26, 1953 defendant filed a Motion to Suppress Evidence and To Return Property, the petition in support of said motion alleging that certain papers and documents were obtained from the files of the defendant in violation of rights guaranteed to him under the Fourth and Fifth Amendments to the Constitution, in that the said papers and documents were obtained by means of an illegal search and seizure and without advice to the defendant that the information sought was in connection with an investigation of the defendant looking toward criminal prosecution, and that he was not warned of his constitutional right not to be a witness against himself and that anything he might say or any information he might make available might be used against him in a court of law. The Government filed an answer to the motion contending in effect that the search was conducted with the consent of the defendant and that the defendant had waived his privilege against self-incrimination. A hearing was held on the issues thus raised by the motion and answer on March 31, 1953 and from the testimony there adduced I find the following to be the facts.
The agents worked for several days in the office of the defendant during most of which time the defendant was present. On or about December 22nd defendant advised the agents that he was going to the the City on December 26, 1949 and inquired whether they had everything they wanted to complete their examination. The agents advised him that they had and defendant left. While the defendant was out of the City, Agent Coram and Special Agent Pearson visited the defendant's office and proceeded to examine the contents of defendant's filing cabinets including certain invoices, records and papers not previously made available by defendant. The person in charge of the office at that time was a Miss Gladys B. Jones, who was employed by a real estate agent, and who was partially employed by the defendant. The agents did not obtain from Miss Jones permission to examine the contents of the filing cabinets nor did they ever obtain from the defendant permission to do so.
The defendant's motion to suppress evidence and to return his property is based upon two separate yet interrelated grounds. One is the constitutional guarantee in the Fourth Amendment against unlawful searches and seizures, and the second is the privilege against self-incrimination contained in the Fifth Amendment. In resisting the motion the Government contends that the search was not unlawful since the examination was conducted with the consent of the defendant and, therefore, the evidence was not obtained in violation of the Fourth Amendment. It argues further that the prohibition against self-incrimination is a personal privilege which may be waived by a defendant and that the defendant here waived it by not asserting it at the time the information was obtained.
The fundamental question to be resolved, therefore, is whether the defendant consented to the examination of the books and records having regard to the facts and circumstances existing at the time the agents availed themselves of the books and records. This problem has two facets, one factual and the other legal. First, did the defendant consent to the examination of the papers within his filing cabinets which the agents examined in defendant's absence? I find as a fact that he did not. The evidence before me clearly demonstrates that insofar as the defendant was concerned, the examination was completed when the agents left him on or about December 22, 1949. He did not contemplate their return and was surprised when he learned by a long distance telephone call that the agents had returned and had gone through his files without permission. Up until this second visit he had made available no documents concerning his 1949 business transactions, all of which were thoroughly scrutinized by the agents on the visit made in his absence. Miss Jones gave no permission to the agents and, in fact, was not authorized to give any permission. At no time did the defendant make available his entire records to the agents. When requested, he would furnish an individual item or group of items. The assumption by the agents of blanket permission either on the part of the defendant or Miss Jones was entirely unfounded.
'The prohibition of the Fourth Amendment is against all unreasonable searches and seizures and if for a government officer to obtain entrance to a man's house or office by force or by an illegal threat or show of force, amounting to coercion, and then to search for and seize his private papers would be an unreasonable, and therefore a prohibited search and seizure, as it certainly would be, it is impossible to successfully contend that a like search and seizure would be a reasonable one if only admission were obtained by stealth instead of by force or coercion. The security and privacy of the home or office and of the papers of the owner would be as much invaded and the search and seizure would be as much against his will in the one case as in the other, and it must therefore be regarded as equally in violation of his constitutional rights.
'Without discussing them, we cannot doubt that such decisions as there are in conflict with this conclusion are unsound, and that, whether entrance to the home or office of a person suspected of crime be obtained by a representative of any branch of subdivision of the government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence, falls within the scope of the prohibition of the Fourth Amendment, * * *'.
I can see no difference between a search conducted after entrance has been gained by stealth or in the guise of a business call, and a search for criminal purposes conducted under the guise of an examination for purely civil purposes. Whether the arrangement to have Agent Coram make the appointment with the defendant was by design to obtain entrance for Special Agent Pearson, or whether it was done innocently, the effect in so far as the defendant was concerned was the same. He was deluded into giving consent to the examination of his papers and records and his action in so doing cannot be said to be voluntary in so far as making available his papers for purpose of investigation to establish fraud for criminal prosecution purposes.
Since the papers and information were obtained in violation of the Fourth Amendment, it follows that their use at time of trial would be a violation of the defendant's rights under the Fifth Amendment. Gouled v. United States, supra, wherein it was stated 225 U.S.,at page 306, 41 S. Ct.at page 264:
'In practice the result is the same to one accused of crime, whether he be obliged to supply evidence against himself or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers. In either case he is the unwilling source of the evidence, and the Fifth Amendment forbids that he shall be compelled to be a witness against himself in a criminal case.'
Though a different result was obtained in that case, there is language in Hanson v. United States, 8 Cir., 186 F.2d 61, which would seem to support the result here reached. In that case, defendant's objections to evidence based upon admissions of the defendant and documents which defendant delivered to government auditors before indictment were overruled. That ruling was held to be proper by the Court of Appeals for the 8th Circuit, but in reaching its result the court said as follows, 186 F.2d at pages 64-65:
The very factors referred to in that opinion as being lacking and which by implication were necessary to sustain the plea of the Fifth Amendment are present in this case. Here, at the time the defendant produced his papers, prosecution was contemplated, whereas, in the Hanson case, there was nothing to indicate that there was any suspicion at the time of the examination that the defendant was guilty of a criminal offense. In the instant case, we have the very frank testimony of Special Agent Pearson that he had reason to believe that the defendant had been guilty of fraud and that his purpose in making the examination of his papers was to obtain evidence for contemplated criminal prosecution. With these different circumstances I am of the opinion that the Court of Appeals for the 8th Circuit would have reached the conclusion that the defendant was entitled to a ...