wrongdoing in conjunction with third parties, but this was not disclosed to defendant. Here so far as the defendant knew or had been informed his books and papers were being examined by Agent Krieger to establish his proper civil liability.
Upon a most reflected review of the decisions, it is apparent that the law distinguishes between failure on the part of a government investigator to disclose the purpose of his investigation at its inception when suspicion of criminal wrongdoing exists and the discovery of criminal wrongdoing in the course of a routine investigation. To secure evidentiary matter without making such disclosure when criminal wrongdoing is suspected constitutes a fraud and deceit upon the taxpayer in violation of his constitutional rights and his right against self-incrimination. U.S.C.A.Constitution, Amends. 4, 5; United States v. Lipshitz, D.C., 132 F.Supp. 519.
I am satisfied that the testimony of the special investigators sufficiently establishes that a fraud and deceit was perpetrated upon the defendant at the inception of the investigation in order to secure evidentiary material with the intent to use the same against him. The fact that the criminal investigation was directed at determining criminal wrongdoing in league with personnel of the Internal Revenue Service and ultimately developed evidence which became a subject of criminal prosecution for income tax violation, does not vitiate from the initial trickery and artifice.
The issue is poignantly raised as to whether defendant ratified and subsequently consented to the initial examination since he agreed to permit the Revenue Agents to further retain his records after he had been notified of the finding of tax discrepancies which might serve as a basis for criminal prosecution. It is to be noted, however, that on August 4, 1953 when Agents Krieger and Madden so informed defendant, it was with the understanding that they would continue working on the records they had already possessed which related to the year 1950, and requested books and data for the tax years of 1952 and 1949. I do not accept the conclusion that since defendant consented to voluntarily release records which related to tax years other than the one for which the indictment is laid, that he thereby ratified and acquiesced to the Internal Revenue Service's illegal acquisition of the records for the year 1950. The Internal Revenue Service already had the records for 1950, and to recall said records at such late phase of the investigation would prove a nullity. In view of the information given defendant on August 4, 1953, I have no doubt that if the indictment were laid for the years 1952 or 1949, that defendant would have been deemed sufficiently apprised of his rights as to have voluntarily consented to the use of his records. But the disclosure made with reference to the years 1949 and 1952 was not made relevant to the year 1950 at the inception of the investigation, and under the facts existing on August 4, 1953, I cannot conclude that defendant's acquiescence to the Internal Revenue Service's retention of records which had already served their purpose, was an act of such a positive character as to constitute a ratification of their initial illegal taking.
The government's contention that defendant did not suffer harm, even admitting the commission of a fraud and deceit upon the defendant, since no evidence of criminal wrongdoing with Internal Revenue Service personnel was uncovered is impervious to the realities and subtleties of human conduct.
Whether or not the defendant would have released his files to the government had he been fully apprised of the reasons underlying the investigation, I do not know. I have always believed, however, that it is not within the court's province to resolve any such doubt against a defendant when the crucial issue of constitutional immunity is raised.
To permit evidence to be obtained against a defendant by the means here employed would be to encourage over zealous and less scrupulous officers and agents of law enforcement agencies to chip away rights guaranteed by the Constitution to defendants by trick and artifice. The dividing line between proper investigative procedures and those which encroach improperly upon constitutionally guaranteed rights is shadowy and ill defined, but the device here used places itself clearly on the wrong side of that line. United States v. Guerrina, D.C., 112 F.Supp. 126.
In this tumultuous age of challenge and peril to free institutions everywhere in the world, the bulwark of constitutional protection upon which rests the foundation of all our freedoms, must be held sacrosanct in the application of the law. To deviate or compromise these sacred rights is to imperil our basic freedoms.
It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. Boyd v. United States, 116 U.S. 616, 635, 6 S. Ct. 524, 29 L. Ed. 746; United States v. Lipshitz, supra.
I conclude, therefore, that defendant's constitutional rights were violated in that he was induced under a misapprehension of the true facts and circumstances to give his consent to an examination under circumstances which rendered that consent nugatory and the search unreasonable and therefore unlawful. His rights were further compromised in that he was required 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 motion of defendant to suppress evidence will be granted.
An appropriate Order is entered.
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