Lowrie v. U.S., No. 84-1838

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore McKAY, BALDOCK and McWILLIAMS; McWILLIAMS
Citation824 F.2d 827
Docket NumberNo. 84-1838
Decision Date28 July 1987
Parties-5399, 87-2 USTC P 9526 Harold W. LOWRIE, et al., Plaintiffs-Appellees, v. UNITED STATES of America; Internal Revenue Service; and Federal Bureau of Investigation; Defendants-Appellants, State of Colorado, et al., Defendants.

Page 827

824 F.2d 827
60 A.F.T.R.2d 87-5399, 87-2 USTC P 9526
Harold W. LOWRIE, et al., Plaintiffs-Appellees,
v.
UNITED STATES of America; Internal Revenue Service; and
Federal Bureau of Investigation; Defendants-Appellants,
State of Colorado, et al., Defendants.
No. 84-1838.
United States Court of Appeals,
Tenth Circuit.
July 28, 1987.

Page 828

David I. Pincus (Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup and Carleton D. Powell, Tax Div., Dept. of Justice, Washington, D.C., and Robert N. Miller, U.S. Atty., Denver, Colo., of counsel, with him on the brief), for U.S., F.B.I., and I.R.S., defendants-appellants.

Rick Budd, of Drexler & Wald, Denver, Colo. (Dennis W. Hartley, of Hartley, Obernesser, Vaglia, Bailey & Robinson, Colorado Springs, Colo., with him on the brief), for plaintiffs-appellees.

Before McKAY, BALDOCK and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Harold W. Lowrie, and others, brought suit in the United States District Court for the District of Colorado seeking return of business records seized by certain of the defendants in a search and seizure which, according to the plaintiffs, was unconstitutional. In their complaint, the plaintiffs also sought return of all copies made of the records thus seized, and a permanent injunction barring any use by the defendants of the records, or copies thereof, in any investigation or proceeding against the plaintiffs. The action was brought pursuant to Fed.R.Crim.P. 41(e) with jurisdiction alleged under 28 U.S.C. Secs. 1331 and 1651 (1982). 1 The named defendants were, inter alia, the Federal Bureau of Investigation (FBI) and the Internal Revenue Service (IRS), as well as certain state agencies and officials. The state and federal defendants filed motions to dismiss, which were denied. See Lowrie v. United States, 558 F.Supp. 1029 (D.Colo.1983).

Page 829

The case was tried on its merits before the Honorable John L. Kane, Jr., who, at the conclusion thereof, dismissed the action as it related to individual federal and state officials, but entered judgment against the FBI, the IRS, and the Colorado Department of Revenue and in connection therewith ordered that all records seized in the search, and any copies of such records, be returned to the plaintiffs.

The trial judge made no findings, as such, although the record does contain the statements of court and counsel when the judge announced his decision. In sum, the district judge found that though the search in question was conducted by state officials, it was a "federal search" because of the involvement of agents of the FBI, that there was probable cause for the search warrant which the state officials obtained from a state judge, but that the warrant lacked particularity, and was therefore a general warrant. He additionally held that the search itself exceeded the search authorized by the warrant and was a general exploratory search. The district judge also found that the records seized in the search were in the physical possession of certain state officials, and he ordered that the records be returned to plaintiffs. The state officials have apparently complied with that order, i.e., the records were returned. In any event, the present appeal is taken by the FBI and the IRS only.

It is agreed that the FBI at an earlier point in time had in its possession copies of all records seized in the search. However, at the time of entry of judgment, the district judge found that the FBI no longer had any copies of the records in question, the copies having been inadvertently destroyed. Nevertheless, in its formal judgment, the district court ordered the FBI to return all copies of the records seized in the search. The record does not support the judgment thus entered against the FBI. As the present action was filed requesting a return of property under Rule 41(e), an order that the FBI return material which it does not have, nor does it have control over, cannot stand.

The IRS also had a copy of all records seized in the search, and such copies were in possession of the IRS as of the date of trial. The district court ordered IRS to return those copies to the plaintiffs, but stayed its order pending appeal. The district court refused to issue any injunction order which would enjoin the IRS from conducting an investigation in connection with its efforts to "collect taxes." The district court stated that its "only order is that the evidence illegally obtained shall be returned and the...

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28 practice notes
  • Church of Scientology of California v. U.S., No. 90-55514
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 12, 1990
    ...544 F.2d 1373, 1376 (7th Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1106, 51 L.Ed.2d 539 (1977)). Accord, Lowrie v. United States, 824 F.2d 827, 830 (10th Cir.1987). The Fifth Circuit has also held that an injunction sought under Sec. 6103 was barred by the Anti-Injunction Act. Kemlon......
  • Goudy–bachman v. United States Dep't of Health, Civil Action No. 1:10–CV–763.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • January 24, 2011
    ...the assessment and collection of taxes. See Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 404 (4th Cir.2003); Lowrie v. United States, 824 F.2d 827 (10th Cir.1987); Dickens v. United States, 671 F.2d 969 (6th Cir.1982). However, these cases are distinguishable from the instant matter. In ......
  • Lonsdale v. U.S., No. 90-2113
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 20, 1990
    ...judicial interference and to require that disputed sums of taxes due be determined in suits for refund. Lowrie v. United States, 824 F.2d 827, 830 (10th Thus, this and other courts have rejected attempts by taxpayers to invoke the waiver of sovereign immunity for the purpose of circumventin......
  • Green Solution Retail, Inc. v. United States, No. 16-1281
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 2, 2017
    ...Lowrie v. United States , where we held that lawsuits challenging "activities leading up to and culminating in" an assessment are barred. 824 F.2d 827, 830 (10th Cir. 1987). On appeal, Green Solution contends the district court had jurisdiction to hear its claims because the Supreme Court h......
  • Request a trial to view additional results
28 cases
  • Church of Scientology of California v. U.S., No. 90-55514
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 12, 1990
    ...544 F.2d 1373, 1376 (7th Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1106, 51 L.Ed.2d 539 (1977)). Accord, Lowrie v. United States, 824 F.2d 827, 830 (10th Cir.1987). The Fifth Circuit has also held that an injunction sought under Sec. 6103 was barred by the Anti-Injunction Act. Kemlon......
  • Goudy–bachman v. United States Dep't of Health, Civil Action No. 1:10–CV–763.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • January 24, 2011
    ...the assessment and collection of taxes. See Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 404 (4th Cir.2003); Lowrie v. United States, 824 F.2d 827 (10th Cir.1987); Dickens v. United States, 671 F.2d 969 (6th Cir.1982). However, these cases are distinguishable from the instant matter. In ......
  • Lonsdale v. U.S., No. 90-2113
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 20, 1990
    ...judicial interference and to require that disputed sums of taxes due be determined in suits for refund. Lowrie v. United States, 824 F.2d 827, 830 (10th Thus, this and other courts have rejected attempts by taxpayers to invoke the waiver of sovereign immunity for the purpose of circumventin......
  • Green Solution Retail, Inc. v. United States, No. 16-1281
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 2, 2017
    ...Lowrie v. United States , where we held that lawsuits challenging "activities leading up to and culminating in" an assessment are barred. 824 F.2d 827, 830 (10th Cir. 1987). On appeal, Green Solution contends the district court had jurisdiction to hear its claims because the Supreme Court h......
  • Request a trial to view additional results

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