United States v. Hoopingarner, Civ. A. Misc. No. 109.

• Decision Date: 01 August 1977
• Docket Number: Civ. A. Misc. No. 109.
• Citation: 438 F. Supp. 366
• Parties: UNITED STATES of America and Ronald V. COREY, Special Agent, Internal Revenue Service, Petitioners, v. Patricia HOOPINGARNER, Respondent.
• Court: U.S. District Court — Northern District of New York

438 F. Supp. 366

UNITED STATES of America and Ronald V. COREY, Special Agent, Internal Revenue Service, Petitioners, v. Patricia HOOPINGARNER, Respondent.

Civ. A. Misc. No. 109.

United States District Court, N. D. New York.

August 1, 1977.

Paul V. French, U.S. Atty., Syracuse, N.Y., for United States; Joseph R. Mathews, Asst. U.S. Atty., Syracuse, N.Y., of counsel.

MacKenzie, Smith, Lewis, Michell & Hughes, Syracuse, N.Y. for respondent; Clayton H. Hale, Jr., Syracuse, N.Y., of counsel.

MEMORANDUM-DECISION AND ORDER

MUNSON, District Judge.

This is an action brought pursuant to 26 U.S.C. §§ 7402(b) and 7604(a) to enforce an Internal Revenue Summons issued to respondent herein. The respondent, whose income tax returns for the years 1973, 1974, and 1975 are being investigated, appeared as directed in the Summons, but refused to provide petitioners with the handwriting exemplars requested.

It is well settled that compelled production of physical characteristics is nontestimonial in nature and therefore not entitled to protection under the Self Incrimination Clause of the Fifth Amendment. See, e. g. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Accordingly, it is clear that the Fifth Amendment does not shield a person from the compelled production of handwriting exemplars. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

The analysis of this case, as it relates to the Fourth Amendment, is two-pronged, involving review of both the initial seizure of the respondent (here, the compelled appearance under color of Summons or Subpoena), and the subsequently ordered production of a handwriting sample or exemplar. Cf. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973).

The initial seizure in this case, involving as it does both a statutory grant of investigative Summons power, 26 U.S.C. § 7602 and a provision for court enforcement, 26 U.S.C. § 7604, is not offensive of the principles contained in the Fourth Amendment. See United States v. Dionisio, supra. United States v. Mara, supra; United States v. Doe, 457 F.2d 895 (2d Cir. 1972) cert. den. 410 U.S. 941, 93 S.Ct. 1376, 35 L.Ed.2d 608, all cases of which relate to handwriting or voice exemplars compelled by a grand jury. As is true with grand jury Subpoenas, this case involves no stigma of the magnitude condemned in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (mass seizure to take fingerprints) and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (stop and frisk). Grand jury Subpoenas and IRS Summonses together enjoy the benefits of the interposition of a neutral magistrate between the subject and the investigating agency to prevent abuses and are therefore analogous. United States v. Bisceglia, 420 U.S. 141, 95 S.Ct. 915, 43 L.Ed.2d 88 (1975). For this reason, the initial seizure does not violate the Fourth Amendment. United States v. Doe, supra.

The compelled production of handwriting exemplars likewise violates no constitutionally protected right. Since there can be no reasonable expectation of privacy with respect to one's physical characteristics which are daily exposed to the public, they are not protected by the Fourth Amendment. United States v. Dionisio, supra; United States v. Mara, supra. As was stated by Judge Friendly in United States v. Doe:

Handwriting and voice exemplars fall on the side of the line where no reasonable expectation of privacy exists. Except for the rare recluse who chooses to live his life in complete solitude, in our daily lives we constantly speak and write, and while the content of a communication is entitled to Fourth Amendment protection, Katz v. United States, supra, the underlying identifying characteristics—the constant factor throughout both public and private communications—are open for all to see or hear. United States v. Doe, supra at 898.

It is therefore clear that the compelled production, by IRS Summons, of handwriting exemplars does not violate any constitutionally protected rights. This does not end the present inquiry, however.

The power of the IRS to summon people and records is purely one of statute, and must accordingly be limited to the circumstances outlined in the statute (in this case, 26 U.S.C. § 7602), United States v. Bisceglia, supra; see also 8A Merten's Law of Federal Income Taxation § 47.51. Applying 26 U.S.C. § 7602 to the compelled production of handwriting exemplars, two courts have found the authority to order it, United States v. Rosinsky, 77-1 U.S.T.C. ¶ 9151 (CCH 86, 212, 4th Cir. 1977); United States v. Campbell, 524 F.2d 604 (8th Cir. 1975), while...