United States v. Guerrina, Crim. No. 17078.
| Decision Date | 11 January 1955 |
| Docket Number | Crim. No. 17078. |
| Citation | 126 F. Supp. 609 |
| Parties | UNITED STATES of America v. Angelo A. GUERRINA. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
W. Wilson White, U. S. Atty., Norman Kron, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
Robert M. Taylor, Philadelphia, Pa., for defendant.
This case is presently before the Court on reargument of defendant's motion to suppress evidence and for return of property taken. The defendant was indicted on February 19, 1953 for income tax evasion covering the years 1946, 1947, 1948 and 1949, in violation of 26 U.S.C. § 145(b). On February 26, 1953 defendant filed his timely motion to suppress evidence and to return property. A hearing was held thereon on March 31, 1953, at which testimony was taken. On May 5, 1953 this Court entered its opinion and order, D.C., 112 F.Supp. 126, made findings of fact on the basis of the testimony, sustained the defendant's motion, and ordered the return of property taken and suppression of the evidence obtained by the Internal Revenue agents. The order covered evidence secured both at interviews with the defendant starting on or about December 12, 1949, and at a visit to defendant's office, in his absence, on December 26, 1949. In the opinion filed two questions were considered by the Court. First, whether the defendant ever legally consented to an examination of his books and records by the Internal Revenue agents and, secondly, whether an unauthorized entrance by the Internal Revenue agents into defendant's filing cabinets, taking therefrom certain evidence, upon which the prosecution was at least partially based, was an unlawful search and seizure in violation of the fourth amendment to the Constitution of the United States. Both of these questions were resolved against the Government and the order entered by the Court provided for return of any property taken and suppression of evidence obtained on all the aforesaid visits. No further proceedings were had and although several terms of court passed, the Government never moved the case for trial.
On July 20, 1954 the Government filed its petition for reargument averring that the question of the dividing line between proper investigative procedures and those which encroach improperly upon constitutionally granted rights is an issue of such vital importance to the Government that the matter warranted further consideration by the Court. In support of its petition the Government cited the recent opinion of the Court of Appeals for the Third Circuit, filed July 1, 1954, United States v. Burdick, 214 F. 2d 768. This Court on July 21, 1954 granted reargument and a hearing was held, at which time both the Government and defendant submitted briefs in support of their respective positions.
A reconsideration of the case has convinced the Court that on one aspect the earlier opinion was erroneous. In the light of the opinion in the Burdick case, the question as to whether the defendant consented to the examination of his check-stubs and other records which he himself made available to the agents, without first being warned of his constitutional rights, is one that cannot be determined preliminarily as a matter of law but is one which must be determined as a question of fact by the jury at the time of trial. The Burdick case, which cites with approval Montgomery v. United States, 5 Cir., 1953, 203 F.2d 887, 893, effectively disposes of this question. While it is true that the facts in each of the above two cited cases differ considerably from those in the instant case, the facts in each of those cases clearly demonstrate that criminal prosecution was contemplated at the time the defendants were questioned by special agents of the Internal Revenue Bureau. The import of the decisions in the Burdick and Montgomery cases, supra, is that failure to warn the defendants of their...
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Moyer v. Brownell
...submitted to the hearing judge on October 10 (N.T. 79), were "United States v. Burdick, 3 Cir., 214 F.2d 768, 772, United States v. Guerrina, D.C., 126 F.Supp. 609, 610, In re Liebster, D.C., 91 F.Supp. 814, 816, Lapides v. United States, 2 Cir., 215 F.2d 253, 254, and United States v. Sine......
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... ... Guerrina, D.C.E.D.Pa. 1953, 112 F.Supp. 126 (permission given to Internal Revenue Service to investigate ... The only question is whether or not Carroll was aware of the grounds for the motion. See F.R.Crim.P. 41(e), 18 U.S.C. There is a conflict in the affidavits as to whether or not defendants' lawyer, ... ...
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United States v. Turzynski, 66 CR 151.
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