Field v. United States

• Decision Date: 19 February 1959
• Docket Number: No. 17319.,17319.
• Citation: 263 F.2d 758
• Parties: Robert E. FIELD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

263 F.2d 758 (1959)

Robert E. FIELD, Appellant, v. UNITED STATES of America, Appellee.

No. 17319.

United States Court of Appeals Fifth Circuit.

February 19, 1959.

Fred Botts, Miami, Fla., for appellant.

David C. Clark, Jr., O. B. Cline, Jr., Asst. U. S. Attys., Miami, Fla., James L. Guilmartin, U. S. Atty., Miami, Fla., Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami Beach, Fla., for appellee.

Before TUTTLE, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The question here is whether property seized in violation of the requirements of the Fourth Amendment, during the enforcement of criminal laws, is thereby insulated from statutory proceedings for the assessment and collection of Federal taxes. Stated in another way the precise problem is whether, after a final order under Fed.R.Crim.P. 41(e), 18 U.S.C.A. suppressing use of the property as evidence, the Court may decline to order an unconditional surrender and return of the property involved to the owner because, subsequent to the order of suppression but prior to its return, the property is levied on for the collection of assessed taxes. By supplemental decree the District Court ordered that as to this property ($10,000 in cash), it would "permit the retention of said sum pending disposition of the tax claims."

As the order of suppression has long since become final by a subsequent dismissal of the criminal information, cf., Zacarias v. United States, 5 Cir., 1958, 261 F.2d 416, we may properly summarize the facts in their most extreme form.

After several weeks of careful surveillance of an apartment building in Miami, Florida, suspected of being the headquarters of a numbers racket operation, ten officers of the Internal Revenue Service accompanied by the United States Attorney made a raid about 4:30 on a Saturday afternoon. The officers had a search warrant covering the premises. All but one of the party entered the premises, where arrests of others were made and where ample evidence was found of violation of the Federal Wagering Excise Tax Law, 26 U.S.C.A. §§ 4411, 4412, 4901(a) and 7203.

As Field, the appellant here, was suspected of being the principal banker, but had not yet been observed going into the building as was his routine custom at this time each Saturday afternoon, one agent remained outside. He furtively concealed himself behind a tree in the expectation that Field would arrive. He was not disappointed. Shortly, Field came on the scene in his flamingo and charcoal Chevrolet Bel-Aire sedan. When Field, walking toward the building, got within two steps of the front door, the Agent stepped out from his place of hiding, said "Hello" and with drawn pistol pointed toward the ground, not Field, suggested that Field go inside. Once inside, he was arrested and searched or searched and arrested. The main fruit of the search was the $10,000 in cash found on his person.

Field moved under Fed.R.Crim.P. 41 (e), for suppression and return of the property¹ taken from him. This motion was heard after criminal proceedings had been commenced by an information. The Court granted, and on rehearing reaffirmed the grant of the motion. No opinion or formal findings were made by the Judge. But it is plainly evident that the Court concluded that from what the agent knew and could then see about Field, he had no reasonable grounds for his coercive action. Faced by an agent with a gun in his hand, Field's movements into the house were not voluntary. It was, the Court concluded, an arrest accomplished with force, without a warrant, and without probable cause. We take it on that basis.

After the order² of December 13, 1957, granting the motion to suppress, the Court, pursuant to a separate motion for return of the property, entered a separate order on February 3, 1958, mandatorily requiring that all of the property as listed in note 1, supra, "be returned to * * * Field, said return to be made by whomsoever has the present possession of said property."

But before the property was returned, the Government sought amendment of that order with respect to Item 1, the cash, and Item 2, the Chevrolet, see note 1, supra. As to the cash, it was established without contradiction that on December 13, 1957, the very day of the initial order of supression, note 2, supra, "the person having custody of the * * cash was duly served with a Notice of Levy by the Collection Division of the Internal Revenue Service at Miami, Florida, with respect to wagering excise taxes due and owed * * * by * * * Field."³ This motion was granted as to the cash but denied as to the Chevrolet.⁴

With great tenacity and moving sincerity, the earnest advocate for Field invokes the Fourth Amendment to strike down this result which he thinks highhanded and lawlessness in the name of law. If this can be done in the interest of the sovereign's well-nigh insatiable need for tax revenues, then, he says, tax collectors may arm themselves as vigilantes, descend upon unwary citizens on the public streets, their places of business, and, yea, even as here within the confines of someone's home and there, by pointed and loaded gun, extract what is administratively claimed to be due but tardily unpaid as a Federal tax.

Without a doubt there are disturbing implications in this case. But we do not yet face any of the extremes so readily and dramatically imagined. These we do not decide. For wise reasons, we may not, if we could, be prophets of the Constitution. Commonwealth of Massachusetts v. Mellon, 1923, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078, 1085; Charles River Bridge v. Proprietors of Warren Bridge, 1837, 11 Pet. 420, 36 U.S. 420, 553, 9 L.Ed. 773, 826; 11 Am.Jur., Constitutional Law § 93 (1937). If there is thought to be within this less flagrant case the seeds of those more serious, then we think it cannot yet be said that such an assumed violation of the Fourth Amendment insulates the property from its tax subjugation.

We say it in these terms for Field misapprehends the present state of the law, and if his contention is to succeed it requires that we carry the principles way beyond their present boundaries. Basically, his difficulty is that he fails to heed the distinction so often pointed out between those actions which are held to violate the Fourth Amendment and the sanctions which the Judiciary does, or may, impose.

The usual sanction is the exclusion of the ill-gotten fruits as evidence or the means to evidence. But to this day, at least, there is no holding that the Constitution compels this sanction. If one reads and assimilates as a composite whole the significant decisions⁵ in this area, some rather certain principles can be drawn. The Fourth Amendment applies, of course, directly to proceedings in the Federal Courts. The Fourteenth Amendment embraces the concept of the Fourth Amendment, so its commands lay on the states as well. Notwithstanding this, the states are not compelled to apply the same sanctions as would the Federal Courts in testing a Federal prosecution. This is so in part because the sanction of exclusion of evidence is not one self-generated by the Fourth Amendment. It is rather, the means fashioned by the Judiciary as one thought to be most effective in carrying out the evident demands and policy reflected by the Fourth Amendment. The Weeks Rule of Exclusion "* * * was not derived from the explicit requirements of the Fourth Amendment; it was not based on legislation expressing Congressional policy in the enforcement of the Constitution. The decision was a matter of judicial implication. * * * And though we have interpreted the Fourth Amendment to forbid the admission of such evidence, a different question would be presented if Congress under its legislative powers were to pass a statute purporting to negate the Weeks doctrine."⁶ Wolf v. Colorado, 1949, 338 U.S. 25, 28, 33, 69 S.Ct. 1359, 1361, 1364, 93 L.Ed. 1782, 1786, 1788. The Judge made genesis⁷ of the exclusionary rule was reiterated in Irvine v. California, 1954, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561. "Wolf * * * declined to make the subsidiary procedural and evidentiary doctrines developed by the federal courts limitations on the states. * * * Whether to exclude illegally obtained evidence in federal trials is left largely to our discretion, for admissibility of evidence is governed `by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.' Fed.Rules Crim.Proc., rule 26." 347 U.S. at pages 132, 134-35, 74 S.Ct. at pages 383, 384, 98 L.Ed. at pages 569, 570.

Indeed, the Court by a recent unanimous pronouncement⁸ recognizes that there may be considerable doubt whether this exclusionary sanction extends beyond the Court's asserted supervisory powers over Federal law enforcement agencies as applied in Rea v. United States, 1956, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233; cf. McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.

We are of the firm view, then, that as thus far construed the Constitution does not itself compel the exclusion of the results of the search for evidence. A fortiori, it does not compel the sanction sought here.

Of course, to accept this thesis briefly summarized that the exclusionary sanction is judge-made does not necessarily end the matter. If the Judiciary, to effectuate the policy of the Fourth Amendment, may fashion this means, it could, we think within reason, fabricate others thought suitable or perhaps desirable. That might include the insulation of the fruits of an illicit search against the usual amenabilities of property.

Such an inquiry has two facets: (1) has any such sanction yet been established either expressly or by implication; (2) if not, should it be? So far as a categorical declaration of any such sanction is concerned, the first is easily answered in the negative. What jurisprudence there is is all to the contrary. Welsh v. United States...