Wendell L. Shaffer and Marjorie M. Shaffer v. Robert C. Wilson, Special Agent of the Internal Revenue Service

523 F.2d 175

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 8, 1975
• Docket: 74-1671
• Status: Published

Opinions

BARRETT, Circuit Judge.

Dr. Wendell L. and Marjorie M. Shaffer (Shaffers) appeal from an adverse summary judgment order ¹ entered in favor of several special agents of the Internal Revenue Service and the United States.²

Dr. Shaffer is a dentist residing in Colorado Springs, Colorado, where he has practiced alone since 1960. His wife, Marjorie, is his receptionist. On Friday, October 22, 1971, at approximately 8:00 A.M. appellees served a search warrant on Dr. Shaffer. The warrant authorized the search of his office for fiscal and business records relating to his income and expenses. After serving the warrant, the appellee agents searched his office and seized numerous records and documents.

On May 24, 1973, Shaffers filed an action under Rule 41(e), Fed.R.Crim.P.³ and 28 U.S.C.A. § 1331 seeking return of their property; suppression of any evidence obtained; injunctive relief; and damages. After granting Shaffers a preliminary injunction on July 5, 1973, the Trial Court, following motions for Summary Judgment filed by both parties, did, upon reviewing the briefs and affidavits, enter summary judgment for appellees.

The Court found that the search and seizure was proper; that there was no “compulsion” here in the Fifth Amendment sense; that the Fourth Amendment requirements for obtaining a warrant were complied with in all respects so as to protect Shaffers’ rights; that the articles seized were business records and not private papers; that the business records were records of which others must have knowledge; and that since the search was proper, Shaffers were not entitled to damages.

On appeal, Shaffer contends that: (1) the seizure of the private papers of a dentist practising as a sole practitioner violated his privilege against self-incrimination; and (2) the search and seizure was unreasonable under the Fourth Amendment.

I.

Shaffers contend that the seizure of a dentist’s private papers under a search warrant is violative of his Fifth Amendment privilege against compulsory self-incrimination. In support thereof, they rely on Hill v. Philpott, 445 F.2d 144 (7th Cir. 1971), cert. denied 404 U.S. 991, 92 S.Ct. 533, 30 L.Ed.2d 542 (1971), and Vonder Ahe v. Howland, 508 F.2d 364 (9th Cir. 1974).

In Hill the Court held that personal books and records of suspected tax evaders cannot be obtained by search warrant because of the Fifth Amendment prohibition against compulsory self-incrimination under circumstances whereby such books and records could have been refused under the Fifth Amendment privilege if they had been sought by subpoena or summons. The Court did not, however, distinguish between the “compulsion” aspect presented via a subpoena or summons, if such there be, and the lack of same under a search warrant.

In Vonder Ahe, the Court, in citing to Hill, held that there was no probable cause under a general search warrant for the indiscriminate seizure of all of a dentist’s books, records, personal and private papers. We readily agree that a general search warrant does not afford “carte blanche” to seize all records, personal and business. However, in Vonder Ahe, the Court declined to determine whether the documents seized should be suppressed on Fifth Amendment grounds, inasmuch as there were no civil or criminal proceedings then pending against the plaintiff.

The Trial Court held that neither Hill nor Vonder Ahe controlled the case at bar. We agree. In declining to follow the rationale of Hill and Vonder Ahe, the Trial Court found:

. it appears that there was no compulsion in the Fifth Amendment sense, attendant to the search and seizure in this case.

We hold that the Trial Court properly found that “compulsion” (re appellants’ Fifth Amendment constitutional rights) was not present here. Significantly, the search warrant was properly executed. Accordingly, appellants’ due process rights were fully protected. This holding is consistent with those of other circuits.

In United States v. Bennett, 409 F.2d 888 (2nd Cir. 1969), cert. denied, Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969), a search incident to defendant’s arrest produced a letter which incriminated him. The Court held that the letter could be seized in order to determine whether it was an instrumentality for effecting a conspiracy and that the Fourth Amendment right to be free from unreasonable search does not protect against seizure of things whose compulsory production would be forbidden by the Fifth Amendment. This rule was reiterated in United States v. Scharfman, 448 F.2d 1352 (2nd Cir. 1971), cert. denied 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789 (1972), wherein the Court further noted that the seizure of index cards and a consignment memorandum book was constitutionally valid, even though the search warrant failed to describe them. The Court reasoned that it was entirely reasonable to assume that the materials were used as instrumentalities in connection with the crime of disposing of stolen fur garments.

In United States v. Blank, 459 F.2d 383 (6th Cir. 1972), cert. denied 409 U.S. 887, 93 S.Ct. 111, 34 L.Ed.2d 143 (1972), the Court held that worksheets of a sports and horsebetting business seized under an admittedly valid search warrant could not be suppressed, regardless of whether they might be in the defendant’s handwriting, since they were not personal communications but rather business accounts of which other persons must have knowledge. The Court observed that the documents were “extraordinary” only because the business itself was illegal. In recognizing the lack of “compulsion” relative to a search warrant, the Court further noted:

there is a valid and important distinction between records sought by subpoena and records sought by search warrant. The subpoena compels the person receiving it by his own response to identify the documents delivered as the ones described in the subpoena. The warrant involved no such element of compulsion upon an actual or potential defendant.

459 F.2d at 385.

Blank was followed in United States v. Gargotto, 476 F.2d 1009 (6th Cir. 1973). The Court there held that lawfully seized documents were not subject to suppression in a prosecution for a false wagering excise tax return as violative of one’s Fifth Amendment privilege against self-incrimination.

In Taylor v. State of Minnesota, 466 F.2d 1119 (8th Cir. 1972), cert. denied 410 U.S. 956, 93 S.Ct. 1425, 35 L.Ed.2d 689 (1973), the Court denied the defendant’s claim that the seizure of an incriminating memorandum⁴ was violative of his Fifth Amendment rights. The Court held that the search in question was “sufficiently specific” so as “not to amount to a general search” and that the evidence failed to establish that the memorandum was obtained by coercion,

In United States v. Murray, 492 F.2d 178 (9th Cir. 1973), cert. denied 419 U.S. 942, 95 S.Ct. 210, 42 L.Ed.2d 166, the Court, in a decision rendered some two years prior to its Vonder Ahe holding, ruled that the seizure of an address book pursuant to a search incident to an arrest did not violate the defendant’s Fifth Amendment privilege.

We accordingly hold that under the facts reflected in the record of this case, and in view of the substantial supportive legal authority, that the seizure of the records herein, pursuant to a valid search warrant, was not violative of Shaffers’ Fifth Amendment privilege against self-incrimination. The materials seized were business records of which other persons must have knowledge. United States v. Blank, supra.

There is no violation of one’s Fifth Amendment privilege against self-incrimination by reason of the proper execution of a valid search and seizure. Nor would the privilege be violated upon the execution of a valid search and seizure incident to a lawful arrest predicated on probable cause. Information properly obtained in a non-accusatorial setting does not violate one’s Fifth Amendment privilege. Pauldino v. United States, 500 F.2d 1369 (10th Cir. 1974). To hold contrariwise, extending Shaffers’ contentions to their extreme, would surely mean that police officers could not seize a gun or other instrumentality of a crime pursuant to a properly issued and validly executed search warrant. If such a rule prevailed, one of the most effective tools in the enforcement of the criminal justice system would be shackled.⁵

II.

Shaffers contend that the search and seizure was unreasonable under the Fourth Amendment because: the warrant was overly broad in scope; the warrant tells the officers to seize too much; and because the agents went beyond the warrant and seized items not set forth therein, including non-fiscal personal and clinical records. We hold that this contention is without merit. The Trial Court properly found that:

Moreover, the articles seized by defendants were business records rather than private papers which are “so much a part of personhood that they ought to enjoy a superlative privacy.” Hill v. Philpott, 445 F.2d at 150 (dissenting opinion of Judge Fairchild). The affidavits appended to Defendant Wilson’s application for a search warrant reveal that at least Plaintiff’s employees and former employees had knowledge of these records. Thus, the items seized were not private, but rather “business records of which other persons must have knowledge.”

The Fourth Amendment prohibits only an unreasonable search undertaken without a warrant. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Nevarez-Alcantar, 495 F.2d 678 (10th Cir. 1974), cert. denied 419 U.S. 878, 95 S.Ct. 141, 42 L.Ed.2d 117. The mandates of the Fourth Amendment are complied with when there exists a reasonable nexus between the item to be seized and the criminal behavior alleged. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

The search warrant herein was not unreasonable under the Fourth Amendment because of overbreadth. The warrant provided, inter alia:

. there is now being concealed certain property, namely fiscal records relating to the income and expenses of Dr. Wendell L. Shaffer from his dental practice and other sources from January 1, 1966 to December 31, 1970, including, but not limited to, dental patient cards, appointment books, cash receipt books, cash disbursement books, expense records, business ledgers, log books, bank ledger sheets and statements, deposit tickets, cancelled checks, purchase invoices, copies of receipts covering payment of fees, copies of invoices and bills . . ., an approximately 5W by 7", — paper pad— allegedly known as a “cheat book”,

The warrant, properly issued and limited in scope to business records as related, supra, was predicated largely upon the supporting affidavits of three of Dr. Shaffer’s previous employees. These affidavits established unequivocally that: Dr. Shaffer kept a log and a “cheat book”; Dr. Shaffer did not record all of his receipts in his log book; items were recorded in the “cheat book” and not in the log; Dr. Shaffer continually bragged to patients and employees about how he cheated on his income tax returns; Dr. Shaffer wrote checks for services never performed and then took “kickbacks”; and that Dr. Shaffer told an employee to “pad” his supply account expenses.

There was sufficient probable cause to issue the warrant, and the warrant was specific in relation to the items to be seized. We hold that the warrant, as issued and as executed, was not violative of Shaffers’ Fourth Amendment rights.

Affirmed.

1 . Reported below at 383 F.Supp. 554 (D.Colo. 1974).

2 . Hereinafter collectively referred to as “appellees”.

3 . Rule 41(e) provides in part:

(e) Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed.

4 . The memorandum in question instructed the defendant’s wife on how to prepare and condition a young woman for service as a member of their stable of prostitutes.

5 . In so holding we also observe the continued efficacy of Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), wherein the Court held:

“We hold that under § 7602 an internal revenue summons may be issued in aid of an investigation if it is issued in good faith and prior to a recommendation for criminal prosecution.”

400 U.S. 517 at 536, 91 S.Ct. 534, at 545, 27 L.Ed.2d 580.

See also United States v. Bisceglia, 420 U.S. 141, 95 S.Ct. 915, 43 L.Ed.2d 88 (Decided February 19, 1975); United States v. Continental Bank & Trust Company, 503 F.2d 45 (10th Cir. 1974); United States v. Hodgson, 492 F.2d 1175 (10th Cir. 1974).