United States v. Blank

• Decision Date: 29 June 1966
• Docket Number: No. CR 65-372.,CR 65-372.
• Citation: 261 F. Supp. 180
• Parties: UNITED STATES of America, Plaintiff, v. John Anthony BLANK.
• Court: U.S. District Court — Northern District of Ohio

261 F. Supp. 180

UNITED STATES of America, Plaintiff, v. John Anthony BLANK.

No. CR 65-372.

United States District Court N. D. Ohio, E. D.

June 29, 1966.

Merle M. McCurdy, U. S. Atty., James L. Oakar, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff.

Jerry Milano, Cleveland, Ohio, for defendant.

CONNELL, Chief Judge.

On October 8, 1965, agents of the Internal Revenue Service descended upon the movant's apartment to execute a search warrant for his premises. For the obvious reason that the conduct of the search transgressed the Fourth Amendment rights of the movant (a point presently conceded by the Government), we granted his Motion to Suppress Evidence on March 4th, 1966. Subsequently, on or about April 18th, 1966, the movant was hailed down to the local offices of the Internal Revenue Service where he was informed that a sizeable assessment was about to be levied against him. He was further informed that the assessment was predicated almost entirely on information gleaned from the papers illegally obtained from his apartment on October 8th, 1965. He then filed this present motion, under favor of Rule 41(e), seeking either a return of the property, or, in the alternative, that the court conduct an in camera inspection and destroy all evidence which the court finds to be usable in a gambling operation. The Government has staunchly resisted the return of such property and has vociferously contested the power of the court to order the destruction of contraband; on the contrary, argues the Government, the law permits the use of the illegally seized evidence in the assessment proceeding because it is an action civil in nature in which the taxpayer has no Fourth Amendment rights and to which the exclusionary rule is inapplicable.

We must first approach the exclusionary rule under attack here by the Government. The purpose of the exclusionary rule is to put teeth into the Fourth Amendment; the rule is the only efficacious sanction whereby courts may deter the unbridled plunder of private property by law enforcement officials. As stated by the Supreme Court in Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081 (1961), to withhold the sanction of excluding illegally seized evidence "is to grant the right but in reality to withhold its privilege and enjoyment." The necessity of withholding evidence which law enforcement officials secure by illegal means "is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it." Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed. 2d 1669 (1960).

But, argues the Government, these lofty principles have no bearing on a proceeding civil in nature. The Fourth Amendment, and its handmaiden—the exclusionary rule—protect the rights of an accused only in a criminal action and restrict investigative efforts of agents only when they are engaged in the enforcement of the criminal code; there is no place in a civil action for either, nor do they restrict the activities of agents engaged in the collection of revenue through the medium of a civil action or an administrative proceeding.

For reasons too clear, we cannot agree with the Government. Where, as here, there is a correlative civil action open to the Government which imposes a penalty upon the citizen commensurate with the criminal sanctions to which an accused, victimized by an illegal search, would be exposed, then we see no distinguishable difference between the two forms of punishment which excuses the government from complying with constitutional mandates when prosecuting their action in a civil forum. Were this not the case, all suspected violators of revenue laws would be subject to the precise evil at which the Fourth Amendment is directed—the unreasonable disruption of the privacy of the home—no matter how slim or unfounded might be the suspicion of their illegal activity. If there is no constitutional check on the "investigative" efforts of federal administrative officials prosecuting civil claims, and there exist forfeiture and deficiency proceedings, civil in form, which inflict an onerous monetary penalty upon an accused which approximates the visitations of the criminal code, there is no practical restraint upon such officials. There is no rule of reasonableness. Searches can be instigated at the capricious whim of any administrative official or enforcement agent rather than as a result of the informed deliberation of "a neutral and detached magistrate." Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). If these speculative suspicions prove to be accidentally accurate, and the invasion force discovers evidence of activity which is both offensive to the criminal code and also indicative of evasion of taxes or tariffs accountable in a civil proceeding, the Government need not bother with criminal proceedings and may avoid the exclusionary rule embodied in Rule 41 of the Federal Rules of Criminal Procedure. If the Government's assessment of the boundaries of the Fourth Amendment is correct, then it may take the accused down a civil avenue to impose its penalties while keeping itself free from the impinging requirement of reasonableness which the Fourth Amendment imposes.

If, however, the capricious invasion of a private dwelling is mistaken, what solace is there for the unfortunate victim? What comfort does the law proffer to the innocent citizen shaken by the felonious intrusion of his hearth? None.¹ What deterrent against this unreasonable activity of the government does the law offer to the innocent? None, if the government has described accurately the perimeter of the Fourth Amendment and the correlative utility of the exclusionary rule. The argument advanced by the Government cannot withstand the searchlight of commonsense nor can it be reconciled with the latest pronouncement on the subject by the United States Supreme Court. For these reasons we must reject the Government's argument that they may use admittedly illegally seized evidence in an assessment proceeding.

Our decision today...