Couch v. United States, No. 71-889

CourtUnited States Supreme Court
Writing for the CourtPOWELL
Citation93 S.Ct. 611,409 U.S. 322,34 L.Ed.2d 548
PartiesLillian V. COUCH, Petitioner, v. UNITED STATES and Edward F. Jennings, etc
Docket NumberNo. 71-889
Decision Date09 January 1973

409 U.S. 322
93 S.Ct. 611
34 L.Ed.2d 548
Lillian V. COUCH, Petitioner,

v.

UNITED STATES and Edward F. Jennings, etc.

No. 71-889.
Argued Nov. 14, 1972.
Decided Jan. 9, 1973.

Syllabus

Petitioner challenges an Internal Revenue Service (IRS) summons directing an accountant, an independent contractor with numerous clients, to produce business records that she had been giving to him for preparation of her tax returns from 1955 to 1968, when the summons was issued. The District Court and the Court of Appeals concluded that the privilege against self-incrimination asserted by petitioner was not available. Held: On the facts of this case, where petitioner had effectively surrendered possession of the records to the accountant, there was no personal compulsion against petitioner to produce the records. The Fifth Amendment therefore constitutes no bar to their production by the accountant, even though the IRS tax investigation may entail possible criminal as well as civil consequences. Nor does petitioner, who was aware that much of the information in the records had to be disclosed in her tax returns, have any legitimate expectation of privacy that would bar production under either the Fourth or Fifth Amendment. Pp. 327 336.

449 F.2d 141, affirmed.

John G. Rocovich, Jr., Roanoke, Va., for petitioner.

Lawrence G. Wallace, Washington, D.C., for respondents.

Page 323

Mr. Justice POWELL delivered the opinion of the Court.

On January 7, 1970, the Government filed a petition in the United States District Court for the Western District of Virginia, pursuant to 26 U.S.C. §§ 7402(b) and 7604(a),1 seeking enforcement of an Internal Revenue summons in connection with an investigation of petitioner's tax liability from 1964—1968. The summons was directed to petitioner's accountant for the production of:

'All books, records, bank statements, cancelled checks, deposit ticket copies, workpapers and all other pertinent documents pertaining to the tax liability of the above taxpayer.'2

The question is whether the taxpayer may invoke her Fifth Amendment privilege against compulsory self-incrimination to prevent the production of her business and tax records in the possession of her accountant.

Page 324

Both the District Court 3 and the Court of Appeals for the Fourth Circuit4 held the privilege unavailable. We granted certiorari, 405 U.S. 1038, 92 S.Ct. 1311, 31 L.Ed.2d 581.

Petitioner is the sole proprietress of a restaurant. Since 1955 she had given bank statements, payroll records, and reports of sales and expenditures to her accountant, Harold Shaffer, for the purpose of preparing her income tax returns. The accountant was not petitioner's personal employee but an independent contractor with his own office and numerous other clients who compensated him on a piecework basis. When petitioner surrendered possession of the records to Shaffer, she, of course, retained title in herself.

During the summer of 1969, Internal Revenue Agent Dennis Groves commenced an investigation of petitioner's tax returns. After examining her books and records in Shaffer's office with his permission, Groves found indications of a substantial understatement of gross income. Groves thereupon reported the case to the Intelligence Division of the Internal Revenue Service.

Special Agent Jennings of the Intelligence Division next commenced a joint investigation with Groves to determine petitioner's correct tax liability, the possibility of income tax fraud and the imposition of tax fraud penalties, and, lastly, the possibility of a recommendation of a criminal tax violation. Jennings first introduced himself to petitioner, gave her Miranda warnings

Page 325

as required by IRS directive, and then issued the summons to Shaffer5 after the latter refused to let him see, remove, or microfilm petitioner's records.

When Jennings arrived at Shaffer's office on September 2, 1969, the return day of the summons, to view the records, he found that Shaffer, at petitioner's request, had delivered the documents to petitioner's attorney. Jennings thereupon petitioned the District Court for enforcement of the summons, and petitioner intervened, asserting that the ownership of the records warranted a Fifth Amendment privilege to bar their production.6

Page 326

I

It is now undisputed that a special agent is authorized, pursuant to 26 U.S.C. § 7602, to issue an Internal Revenue summons in aid of a tax investigation with civil and possible criminal consequences.7 In Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), the Court upheld such a summons, noting that:

'Congress clearly has authorized the use of the summons in investigating what may prove to be criminal conduct. . . . There is no statutory suggestion for any meaningful line of distinction, for civil as compared with criminal purposes, at the point of a special agent's appearance. . . . To draw a line where a special agent appears would require the Service, in a situation of suspected but undetermined fraud, to forgo either the use of the summons or the potentiality of an ultimate recommendation for prosecution. We refuse to draw that line and thus to stultify enforcement of federal law.' Id., at 535—536, 91 S.Ct. at 544.8

The Court in Donaldson noted that the taxpayer there had attempted to intervene, pursuant to Fed.Rule Civ.Proc. 24(a)(2), to bar production of records 'in which the taxpayer has no proprietary interest of any kind, which are owned by the third person, which are in his

Page 327

hands, and which relate to the third person's business transactions with the taxpayer.' Id., at 523, 91 S.Ct., at 538. The Court quite properly concluded that, under those facts, no absolute right to intervene existed. Id., at 530—531, 91 S.Ct., at 542. The instant case, however, presents a different question. Here petitioner does own the business records which the Government seeks to review and the courts below did permit her to intervene. The essential inquiry is whether her proprietary interest further enables her to assert successfully a privilege against compulsory self-incrimination to bar enforcement of the summons and production of the records, despite the fact that the records no longer remained in her possession.

II

The importance of preserving inviolate the privilege against compulsory self-incrimination has often been stated by this Court and need not be elaborated. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966). By its very nature, the privilege is an intimate and personal one. It respects a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation. Historically, the privilege sprang from an abhorrence of governmental assault against the single individual accused of crime and the temptation on the part of the State to resort to the expedient of compelling incriminating evidence from one's own mouth. United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944). The Court has thought the privilege necessary to prevent any 'recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality,' Ullmann v. United States, 350 U.S. 422, 428, 76 S.Ct. 497, 501, 100 L.Ed. 511 (1956).

Page 328

In Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964), the Court articulated the policies and purposes of the privilege:

'(O)ur unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government . . . in its contest with the individual to shoulder the entire load,' . . . our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life' . . .'

It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him. As Mr. Justice Holmes put it: 'A party is privileged from producing the evidence, but not from its production.' Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913). The Constitution explicitly prohibits compelling an accused to bear witness 'against himself': it necessarily does not proscribe incriminating statements elicited from another. Compulsion upon the person asserting it is an important element of the privilege, and 'prohibition of compelling a man . . . to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him,' Holt v. United States, 218 U.S. 245, 252—253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910) (emphasis added). It is extortion of information from the accused himself that offends our sense of justice.

Page 329

In the case before us the ingredient of personal compulsion against an accused is lacking. The summons and the order of the District Court enforcing it are directed against the accountant.9 He, not the taxpayer, is the only one compelled to do anything. And the accountant makes no claim that he may tend to be incriminated by the production. Inquisitorial pressure or coercion against a potentially accused person, compelling her, against her will, to utter self-condemning words or produce incriminating documents is absent. In the present case, no 'shadow of testimonial compulsion upon or enforced communication by the accused' is involved. Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1832, 16...

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654 practice notes
  • United States v. Bonnell, Civ. No. 4-78-190
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • December 27, 1979
    ...States v. LaSalle National Bank, supra. The validity of a summons is determined as of the date of its issuance. Couch v. United States, 409 U.S. 322, 329 n. 9, 93 S.Ct. 611, 31 L.Ed.2d 548 (1973); United States v. Rosinsky, 547 F.2d 249, 254 (4th Cir. 1977). Cf. United States v. Giordano, 4......
  • Izazaga v. Superior Court, No. S017642
    • United States
    • United States State Supreme Court (California)
    • August 30, 1991
    ...to the person, not to information that may incriminate him.' " (Id. at p. 233, 95 S.Ct. at p. 2167, quoting Couch v. United States (1973) 409 U.S. 322, 327, 93 S.Ct. 611, 615, 34 L.Ed.2d 548, italics in original.) In Nobles, the court rejected a self-incrimination challenge to a trial court......
  • State v. Smith, No. 17731.
    • United States
    • Supreme Court of Connecticut
    • November 25, 2008
    ...against 960 A.2d 1004 self-incrimination is personal and may not be invoked on behalf of another. See, e.g., Couch v. United States, 409 U.S. 322, 327, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973); State v. Smith, 201 Conn. 659, 664, 519 A.2d 26 (1986). The privilege itself, however, is an evidentia......
  • Moyer v. Com., Record No. 2959-97-2.
    • United States
    • Virginia Court of Appeals of Virginia
    • October 26, 1999
    ...S.Ct. 524. Following this landmark decision, the Court has refined the scope of Boyd's Fifth Amendment holding. In Couch v. United States, 409 U.S. 322, 324, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), the Court decided the "question ... whether the taxpayer may invoke her Fifth Amendment privileg......
  • Request a trial to view additional results
647 cases
  • United States v. Bonnell, Civ. No. 4-78-190
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • December 27, 1979
    ...States v. LaSalle National Bank, supra. The validity of a summons is determined as of the date of its issuance. Couch v. United States, 409 U.S. 322, 329 n. 9, 93 S.Ct. 611, 31 L.Ed.2d 548 (1973); United States v. Rosinsky, 547 F.2d 249, 254 (4th Cir. 1977). Cf. United States v. Giordano, 4......
  • Izazaga v. Superior Court, No. S017642
    • United States
    • United States State Supreme Court (California)
    • August 30, 1991
    ...to the person, not to information that may incriminate him.' " (Id. at p. 233, 95 S.Ct. at p. 2167, quoting Couch v. United States (1973) 409 U.S. 322, 327, 93 S.Ct. 611, 615, 34 L.Ed.2d 548, italics in original.) In Nobles, the court rejected a self-incrimination challenge to a trial court......
  • State v. Smith, No. 17731.
    • United States
    • Supreme Court of Connecticut
    • November 25, 2008
    ...against 960 A.2d 1004 self-incrimination is personal and may not be invoked on behalf of another. See, e.g., Couch v. United States, 409 U.S. 322, 327, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973); State v. Smith, 201 Conn. 659, 664, 519 A.2d 26 (1986). The privilege itself, however, is an evidentia......
  • Moyer v. Com., Record No. 2959-97-2.
    • United States
    • Virginia Court of Appeals of Virginia
    • October 26, 1999
    ...S.Ct. 524. Following this landmark decision, the Court has refined the scope of Boyd's Fifth Amendment holding. In Couch v. United States, 409 U.S. 322, 324, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), the Court decided the "question ... whether the taxpayer may invoke her Fifth Amendment privileg......
  • Request a trial to view additional results
3 books & journal articles
  • STINGRAY STUNG? ANALYZING CELLPHONES AS EFFECTS PROVIDES FOURTH AMENDMENT TREATMENT.
    • United States
    • Harvard Journal of Law & Technology Vol. 34 Nbr. 2, March 2021
    • March 22, 2021
    ...(1976) (holding that there is no legitimate expectation of privacy in one's financial records held by one's bank); Couch v. United States, 409 U.S. 322, 335 (1973) (holding that there is no legitimate expectation of privacy in one's financial and tax records held by one's accountant); Hoffa......
  • AN ANALOGICAL-REASONING APPROACH FOR DETERMINING EXPECTATIONS OF PRIVACY IN TEXT MESSAGE CONTENT.
    • United States
    • Rutgers Computer & Technology Law Journal Vol. 47 Nbr. 1, March 2021
    • March 22, 2021
    ...it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed."); Couch v. United States, 409 U.S. 322, 335-36 (1973) (holding that the petitioner lacked an expectation of privacy in records provided to her accountant); United Stales v. White, ......
  • Silence and Nontestimonial Evidence
    • United States
    • American Criminal Law Review Nbr. 58-2, April 2021
    • April 1, 2021
    ...caselaw had “washed away” its foundations. Id. at 409. 61. Id. at 393–94. 62. Id. at 394. 63. Id. at 394–95. 64. Id. at 397. 65. 409 U.S. 322, 329 (1973) (holding that no Fifth Amendment violation occurred where the government subpoenaed records from a suspect’s accountant). 2021] SILENCE A......

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