and circumstances to give his consent to an examination under circumstances which rendered that consent ineffective and the search unreasonable and therefore unlawful. His rights were further violated in that he was induced by reason of the same misunderstanding of the true facts and circumstances to give testimony against himself without proper warning. The evidence and information so obtained by the Government may not be used against the defendant and the motion to suppress evidence and to return property will be granted.
The Government has cited several cases in support of its contention that defendant's rights were not violated. A careful reading of those cases indicates that some are distinguishable and others wholly inapplicable.
Massei v. United States, 4 Cir., 295 F. 683, is cited for the proposition that admission into evidence of invoices voluntarily furnished by defendant to a prohibition agent on request, before his arrest, was not a violation of his constitutional rights even though he was not warned that they might be so used.
The facts of that case are only briefly treated in the opinion, but it appears clear that the defendant took the stand in that case on his own behalf and the invoices so obtained were introduced in the cross-examination of the defendant. No citation of authority is needed to illustrate that a defendant waives his privilege against self incrimination by taking the stand on his own behalf. The court further found that in that case the invoices were used for the very purpose for which the defendant had voluntarily surrendered the, i.e. to aid in checking the extent of his purchases and sales of extracts.
Jarecki v. Whetstone, D.C., 82 F.Supp. 367, cited as authority that 26 U.S.C. § 3654(a), regarding proceedings to compel attendance, testimony and production of books, etc. of a taxpayer to aid the investigation by the Collector of Internal Revenue is not violative of either the Fourth or Fifth Amendments. That court decided only that the section is not per se violative of the Fourth and Fifth Amendments. The ruling of the District Court directing the taxpayer to appear with all books and records was appealed and the appeal dismissed because the order was interlocutory. Jarecki v. Whetstone, 7 Cir., 192 F.2d 121. In the course of its opinion the Court of Appeals by way of dictum indicated that if the defendant regarded the order as violative of fundamental rights, defendant could disobey the order, be adjudged in contempt and then appeal from that decision. The Jarecki ruling cited by the Government, therefore, has no persuasiveness on the question whether a taxpayer may be compelled to testify against himself by producing his records and testifying in response to summons properly issued. It should be noted also that the Jarecki case was a civil proceeding.
Bowles v. Beatrice Creamery Co., 10 Cir., 146 F.2d 774, held that where consent is freely and voluntarily given, motions to suppress evidence thus obtained were improperly granted.
That case turned on the facts. The District Court, 56 F.Supp. 805, found that the agents had identified themselves and asserted that they had the power to demand the records sought, that they had demanded the records, and that defendants submitted to the demand, which was not a consent constituting a waiver of constitutional rights. The Court of Appeals made its own finding of fact based on affidavits and determined that the investigators requested permission to examine the records and that consent was freely and voluntarily given.
Were the facts in this case such as to disclose voluntary action on the part of Guerrina, I would not hesitate to hold that he had waived his constitutional rights but, as hereinbefore stated, the subterfuge employed by the agents negatived his consent and rendered his action involuntary.
In re White, D.C., 98 F.Supp. 895, involved only the question whether a taxpayer had made his voluntary disclosure before a fraud investigation had been initiated so as to entitle the taxpayer to immunity from criminal prosecution under the then existing regulation. It was held that the investigation had been initiated before the voluntary disclosure and that therefore the taxpayer was not entitled to the immunity.
United States v. Hoyt, D.C., 53 F.2d 881, involved books and papers of a corporation of which defendant was sole stockholder and it was held that the privilege did not extend to corporate books and records. There also there was a question relating to the effect of bankruptcy upon the constitutional privileges. It was further held that under the provisions of the bankruptcy law, by coming through his own acts under the substantive law of insolvency, a defendant has involved himself in a waiver of his right that his papers should remain wholly inviolate and his constitutional rights are in some measure impaired.
Fuller v. United States, 2 Cir., 31 F.2d 747, also involved corporate papers to which the privilege does not extend.
On final point the Government has commented upon, the passage of time between the examination of these papers and the filing of the motion to suppress. That point was dealt with in Takahaski v. United States, 9 Cir., 143 F.2d 118, 122:
'* * * it is hornbook law, so far as suppression of the evidence at a trial is concerned, that even the strict rule of the federal courts requires only that the motions be made in advance of trial so that the judge will not have to rule thereon while the jury is waiting.'
Here, the motion was made within a matter of days after the filing of the indictment and well in advance of trial and is, therefore timely.
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