United States v. Leahey

• Decision Date: 07 October 1970
• Docket Number: No. 7628.,7628.
• Parties: UNITED STATES of America, Appellant, v. Alice E. LEAHEY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

434 F.2d 7 (1970)

UNITED STATES of America, Appellant, v. Alice E. LEAHEY, Defendant, Appellee.

No. 7628.

United States Court of Appeals, First Circuit.

October 7, 1970.

Willie J. Davis, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., was on brief, for appellant.

Thomas M. Mawn, Jr., Woburn, Mass., for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

The issue presented by this case concerns the failure of the Internal Revenue Service (I.R.S.) to follow its own published general procedure, requiring its Special Agents to give certain warnings on initial contacts with taxpayers they are investigating. More precisely, the question is: should the courts exclude evidence obtained from an interview where a Special Agent fails to give the warnings required by that procedure?

After several initial contacts with I.R.S. employees who were not Special Agents, appellee, Alice Leahey, was visited by Special Agents in her own home. Although they identified themselves, they failed to observe the I.R.S. announced procedure of warning her that they were investigating the possibility of criminal tax fraud. At a second visit when the Agents obtained bank statements and books from appellee, they also failed to give any warnings. Appellee was subsequently indicted and arraigned. She filed a motion to suppress the information and books and records obtained by the Special Agents on their two visits to her home. Relying on the general principle that due process requires government agencies to follow their specified procedures and on the Fourth Circuit opinion in United States v. Heffner, 420 F.2d 809 (4th Cir. 1969), the district court allowed appellee's motion to suppress. The government appeals.

Many courts and commentators have struggled with applying the due process limits on police interrogations to interviews conducted by the I.R.S. I.R.S. investigations differ from those of the police in several ways: they are usually, if not wholly civil, a hybrid civil-criminal investigation; suspects are rarely interrogated while in custody; and the focus is whether or not a crime has been committed as opposed to the normal police problem of identifying the perpetrator of a reported crime. Because of these differences, the rules governing police interrogations do not necessarily apply to interviews conducted by I.R.S. Agents. Although several commentators and a few courts have argued with some persuasiveness that the thrust of the Supreme Court's opinion in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that all taxpayers interviewed by I.R.S. Agents be warned of the potential criminal implications of a tax investigation,¹ this court has refused to require that the full panoply of Miranda warnings be given a taxpayer, not in custody, who is interviewed by I.R.S. agents.²

This difficulty of harmonizing non-custodial interviews conducted by I.R.S. Agents with the requirements of due process resulted in "a number of inquiries" to the I.R.S. As a result, the I.R.S. attempted to comply with the Court's request in Miranda for "increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws." 384 U.S. at 467, 86 S.Ct. at 1624. The I.R.S. publicly announced its new procedure in a news release on October 3, 1967.

On initial contact, Agents are instructed to state, "As a special agent, I have the function of investigating the possibility of criminal tax fraud." If further investigation is required after preliminary inquiries, the Agent is required to advise the taxpayer of his rights to remain silent and to retain counsel. These procedures were adopted for the specific purpose of insuring "uniformity in protecting the Constitutional rights of all persons." We face for the first time a case to which this procedure was applicable but not applied.

The government challenges the district court's reliance on United States v. Heffner, 420 F.2d 809 (4th Cir. 1969), stating that the cases there relied upon all concerned adjudicatory proceedings.³ It asserts that the strict rules of due process applicable to such proceedings do not apply to investigative proceedings; that agencies have no power to impose exclusionary rules on the courts; and that excluding admissions secured in violation of the I.R.S. announced procedure will result in "endless motions to suppress".

We consider first the impenetrability of these roadblocks and then search for any positive justification. The major argument advanced for reversal is the distinction, insofar as the applicability of due process rules of fair play are concerned, between adjudicative and investigative proceedings. It is quite true that the precedents relied on in Heffner, see n. 3 supra, as well as other cases,⁴ involved adjudicative action by agencies. But the adjudicatory-investigatory dichotomy is a talisman only in the context of an agency hearing. In that context, the distinction is relevant to whether or not the agency is functioning like a court and hence must follow the due process rules that courts follow or whether it is functioning like a legislature and is bound by the lesser restrictions that govern investigative fact-finding. Thus, in Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), which the government quotes at length, the Supreme Court ruled that the Civil Rights Commission was not bound by the strict due process rules applicable to an adjudicatory agency because it was functioning in only an investigatory, fact-finding capacity in order that it might make legislative recommendations. We recently recognized the distinction central to Hannah in Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir. 1970).⁵

Here we are faced with the question of the limits which due process imposes on a police agency in the course of a criminal investigation. There can be no doubt that such investigations are subject to due process. As Mr. Justice Frankfurter said, speaking for the Court in McNabb v. United States, 318 U.S. 332, 343, 63 S.Ct. 608, 614, 87 L.Ed. 819 (1943), "A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process." In determining what limitations due process imposes on police agencies, it is not helpful to say that the due process requirements of adjudication are not imposed on agencies that conduct legislative investigations.

The remaining barriers to our inquiry require less comment. The government cited United States v. Luna (W.D.Tex.), 313 F.Supp. 1294 (May 7, 1970), which held that administrative agencies may not "dictate preconditions for the admissibility of evidence in a federal trial". Of course we agree with the principle. But we cannot see its applicability. In form the I.R.S. announced procedure has nothing to do with admissibility. The decision as to the exclusionary implications of a violation of the procedure is ours, and based on our sense of the duties and rights so created. The crucial question is whether we must exclude this evidence so that agencies will be compelled to adhere to the standards of behavior that they have formally and purposely adopted in the light of the requirements of the Constitution, even though these standards may go somewhat further than the Constitution requires.

The government also raises the spector of endless motions to suppress, and hearings thereon, if we affirm. Yet it cites Cohen v. United States, 405 F.2d 34 (8th Cir. 1968), cert. denied, 394 U.S. 943, 90 S.Ct. 1274, 22 L.Ed.2d 478 (1969), which announced that failure of an Agent to comply with I.R.S. procedures will be "among the factors considered * * * in determining whether the nature of the investigation has been misrepresented." 405 F.2d at 39. Such an approach would seem to us to invite uncertainty and litigation. In contrast, a clear rule excluding admissions secured by an agent who has not conformed to required procedure would be more likely to decrease, rather than increase, the number of such motions and hearings.

What we have said does not answer our question. It merely gives us freedom to pursue it. We begin our search for a rationale by observing that the Court in Miranda, as we have noted, specifically asked law enforcement agencies to develop better ways of harmonizing the protection of individual rights with efficient enforcement of the law. The Service has tried to do this. We must assume that the publicly announced procedure was arrived at only after painstaking intra-agency assessment. Were we to say that Miranda is the ceiling rather than the floor of the rights of citizens vis-a-vis the government, we would make a mockery of the Miranda invitation.

Beyond this, we see a conjunction of two reasons why due process requires the I.R.S. to follow its announced procedures. The first is that announced in the press release itself — the objective of uniform conduct by all Agents. This is an objective shared by the Service, the public, and the courts. If this self-imposed rule of conduct could be violated without the sanction of judicial exclusion, what would be the result? Of course internal disciplinary measures would be available....