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October 9, 1961

Cosmo S. GENIVIVA and Helen V. Geniviva
John H. BINGLER, District Director, Internal Revenue Service, U.S. Treasury Department

The opinion of the court was delivered by: SORG

This action is before the Court on plaintiffs' motion to suppress for use as evidence by defendant certain items of plaintiffs' property.

The parties have stipulated the following facts:

 '1. On or about April 6, 1961, the residence of Cosmo S. Geniviva and his wife, Helen V. Geniviva, at 502 Jefferson St., Ellwood City, Pennsylvania, was illegally entered and money in the possession of the Genivivas was stolen.

 '2. Shortly thereafter, the burglars were arrested and most of the money was recovered by the Ellwood City Police. The money was retained by the police as evidence and subsequently turned over by them for that purpose to Joseph S. Solomon, District Attorney of Lawrence County, and William McCallion, County Detective.

 '3. Agents of the Internal Revenue Service received certain wrappers from the Ellwood City police, which wrappers had been in the possession of the petitioners. At no time had agents of the United States Internal Revenue Service seen any of the money in question. The wrappers are now in the possession of agents of the Internal Revenue Service.

 '4. The Internal Revenue Service of the United States issued and served upon Joseph S. Solomon and William McCallion a summons to produce, for examination before a Special Agent of the Internal Revenue Service, said money as well as automobiles and other paraphernalia confiscated in the robbery case. The automobiles apparently belonged to the burglars. The summons was issued pursuant to 26 U.S.C. 7602 for the purpose of ascertaining the correctness of tax returns filed by the Genivivas.'

 Plaintiffs moved to quash the summons for return of the property and to suppress its use in evidence. After hearing, the Court denied the motion to quash the summons, ordered the property produced for inspection by agents of the Internal Revenue Service and then returned to plaintiffs. Decision was reserved at that time on plaintiffs' motion to suppress.

 Plaintiffs contend that the use of the property in evidence in any criminal proceeding would violate their rights under the Fourth and Fifth Amendments to the Constitution of the United states. It may be noted that plaintiffs have not been indicted nor has any criminal proceeding been commenced against them.

 In Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921) plaintiff brought a civil suit to restrain the use in evidence of and for the return of certain books and papers which had been stolen and, several months later, turned over by the thief to a Special Assistant to the Attorney General of the United States. The Court held that the United States could retain the papers for use as evidence in a criminal proceeding and set forth the following principles at p. 475 of 256 U.S., 41 S. Ct. 574:

 'The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued.

 'In the present case the record clearly shows that no official of the Federal Government had anything to do with the wrongful seizure of the petitioner's property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of the Cities Service Company. It is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken and held was turned over to the prosecuting officers of the Federal Government. We assume that petitioner has an unquestionable right of redress against those who illegally and wrongfully took his private property under the circumstances herein disclosed, but with such remedies we are not now concerned.

 'The Fifth Amendment, as its terms import is intended to secure the citizen from compulsory testimony against himself. It protects from extorted confessions, or examinations in court proceedings by compulsory methods.

 'The exact question to be decided here is: May the Government retain incriminating papers, coming to it in the manner described, with a view to their use in a subsequent investigation by a grand jury where such papers will be part of the evidence against the accused, and may be used against him upon trial should an indictment be returned?

 'We know of no constitutional principle which required the Government to surrender the papers under such circumstances. Had it learned that such incriminatory papers, tending to show a violation of federal law, were in the hands of a person other than the accused, it having had no part in wrongfully obtaining them, we know of no reason why a subpoena might not issue for the production of the papers as evidence. Such production would ...

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