Donn Vonderahe and Barbara Vonderahe v. Roy H. Howland

364 Mo.1937); (St. Appeals, Louis Ct. Inc., Super Service, Miss. 183 Vonder Donn and Barbara

Brooks v. 833, VonderAHE Plaintiffs-Appellants, Ahe, (1938); v. Win 202 Moore So. (1935). field, 767, 178 S.E. 605 207 N.C. particularly so view This is Roy al., H. HOWLAND et Defendants dupli formulation’s essential Appellees. Caminito See, hornbook law. of standard cation No. 71-1982. Cooley, g., 1 Torts at 397- T. e. § Appeals, United States Court of 1932); (4th Haggard ed. 3'Re- ed. Ninth Circuit. Torts of the Law of § statement Nov. 1974. (1938). Rehearing Denied Feb. means,” this view “undue Under manifest crucial and Williams Caminito Ap- before the The facts differences.

pellate revealed Division Caminito practices

police in the not demonstrative frame an in-

court’s view of an intent to Thus, persistent inter-

nocent man. rogation and mock identifications practices not deviant from

be seen as

prevailing prosecutorial norms prove an intent

consistent with guilt.

guilty man’s As the Caminito

court stated: judg- years determination, after

A plaintiff’s constitutional

ment, violated, insufficient

rights ma- an action

expose defendant proceeding prosecution for licious properly conducted then-existing

probable under cause law.

State N.Y.S.2d A.D.2d 848 Williams, added). (emphasis at 829 brutality physical hand, the other on alleged by the apparently believed prosecution case jury in the malicious accepted departure from a marked probable manifestation

practices allow Not to intent.

of fraudulent these finding means” based “undue reading all con- amount

facts concluding Our term. out tent opinion in our issue on this statement repetition here:

bears police practices Indeed, dubious if plaintiff’s present secured the qualify in 1948 do conviction means,” is difficult then “undue might. imagine what supra.

Williams, rehearing denied. petition MOORE,* ELY, Before and BARNES Judges.

Circuit MOORE, Judge: Circuit M., morning Just after 8:00 A. on the 16, 1970, group Special of June four Agents of the Internal Revenue Service (IRS) arrived at the of Dr. Donn office VonderAhe, practicing dentist Fre- mont, Simultaneously, a California. sec- group agents ond of three arrived at the wife, Bar- his and home of doctor Each bara, Newark, California. group armed with Commissioner. States issued a United or, Agents proceeded to search then office accurately, both to ransack more every practically asport and to and home lay they hands paper piece could on. ex- background rather to this portrayed

traordinary procedure is best chronologically. somewhat (usually Dr. referred to VonderAhe “doctor”) apparently herein as the has a practice. dental On June successful eight his rooms 16th office consisted hallway. He had one or more em- and ployees kept patients’ who his records payments. and recorded bills and Barbara, wife, and The doctor joint returns. tax income filed early e., part i. between early Agent March, January an IRS and late (Holmes) of their an audit made There returns. income tax and 1967 him six sets available were made (1) years question: for the cash-receipts-cash-disburse- combined (2) journal; statements bank ments savings checks; (3) account cancelled appoint- patient (4) daily passbooks; (argued) Johnston, charged Neil F. Horton amounts book with ments Horton, Oakland, plain- Cal., Klein tiffs-appellants. & collected; (5) patient cards amounts together containing information dental collections; (6) charges (argued), Crombie J. D. Garrett Agent Holmes receipts Atty., Appellate books. Section, Dept, cash of Jus- exam- and records the books tice, Washington, C., found that D. for defendants- accurately income reflected appellees. ined Circuit, sitting * Moore, Judge Second Circuit P. Senior Leonard The Honorable designation. acceptance of ported, recommended cards from the files taxpayers’ filed. returns as when the pending; 1969 audit was the doctor had taken long these records to his recommendation This home so that would not be available telephone call from because a endure Examining Agent; Bush, that the Lynette IRS employee, former doctor had instructed her during to remain peri- her the doctor revealed day home on the of the so that she audit two employment had maintained od of give any “wrong” would not employee answers. former This of records. sets In addition to information concerning about specific the records most was books, Comegys cards and Mrs. stated stated thereof. She the location had, arranged she “regular” patients of the records opening of a cards; Swiss bank account for her “Banco” on white were recorded employer deposited yellow had patients a check for “emergency” those of $6,050 therein. green subsequently cards. She sheets— further disclosed received that checks The Search Warrant patients listed on the from for services Having hand yellow cards were received information, sheets this IRS endorsed*/by and cashed the doctor was alerted the fact that there existed previously employee. yellow another unexamined sheets and green cards and books in which entries according In office, to Mrs. Bush therefrom had been There made. were Order, and Mrs. Van another former em- ways by various which these records ployee VonderAhe, “emergen- of Dr. could have been obtained. The doctor cy” kept portable cards were in a file voluntarily Agent had made available to “opratory” cabinet maintained Holmes all of records income received room, separate apart from the other “regular” patients. from his Confront- (Bush, Aff., 1970) file cabinets June knowledge ed with IRS knew of or, during regime, Van Order’s in the records, the withheld scarcely the doctor was third drawer of the cabinets on the, position place in a the un- right side of the office. category disclosed a different There were four “emergency receipt Agents from the disclosed. The could during books” period employee of them; they have asked for have could Bush’s employment, during and three thought subpoenaed them; they or, if employee Van tenure, Order’s danger destruction, there was were relevant to allegedly VonderAhe’s they could have a warrant. The unreported income. The ques- books in chose last course of action. service tion were described “approximatly spite “things” of the fact that the one inch thick with receipts per six places to be seized and the to be page.” they When filled, were taken to searched were known to the Service the doctor’s home. high degree specificity, the war- Agent requested assigned rants as and issued Romano was to inves- “general tigate were, practical purposes, for all further. To him it was obvious property allegedly only warrants.” The con- that if the white card income had Agent cealed was described as: “Fiscal records relating Holmes, been disclosed to the doc- expenses to the income and tor’s income would have been understat- from dental Dr. Donn VonderAhe his yellow ed the amount of January practice sheet/green and other sources since “emergency” card income. date, including, investigation but not limit- At least an in order was patient appointment cards, ed to dental reported. ascertain whether it had been books, appointment-cash combined re- suspicion strengthened by This re- receipts ceipts books, combined cash employee, marks made another a Mrs. journals, cash disbursements business Comegys, Agent who told the that she ledger ledgers, expense records, bank and the doctor had removed the checks, statements, cancelled practice unable to resume books, records savings pass account bank approximately weeks when two most open- relating to the correspondence original records were returned. withdrawals ing deposits and of the seizure The extent by said maintained account a bank (“Document judged by Receipt”) list in Gene- Romande at the Banaue Doctor Agents, which consisted made thirty-two pages copies invoices plus va, Switzerland, papers and records afore- patients of the sent to and bills away in cartons which were carted said Doctor.” way By of brief illustra- small truck. grounds and seizure tion, Agents for search took the contents of the been pri- and have “now stated as: desk in his of the doctor’s drawers committing and con- including correspondence office, used as a means vate in violation lating purchase property of offenses stitute Reve- provisions River, Internal Montana, a U-Haul rental Bull laws; particularly contract, Sections application insurance, nue 'an letters, 7206(1) United States relating Title 26 personal of to the United States prosecution from the material for seized 530, 1580, 29 L.Ed.2d (4) injunction against purposes; an (1971), Supreme in which the Court contacting persons businesses, the said: “We have thus indicated that re names which were disclosed the immediately view is available of a denial material; (5) suppression seized the of of a -motion the return for of seized property the seized as evidence in property, there where is no criminal proceeding” any pro- “criminal ceeding .and prosecution pending the movant. liability tax to determine the States, supra, See DiBella v. United (6) VonderAhes; hearing the and to 131-132, U.S. at 7 L.Ed.2d [82 court, prior presen- be held the to the at at 614].” U.S. Jury tation of the to a Grand Accordingly, we conclude that the 1582. Commissioner, or a at which the defend- final and order of the court below was prove ants “shall that said evidence was jurisdiction appellate un- that we have illegally By obtained.” leave of der 28 U.S.C. § court, complaint amended the to as- damages disruption sert the suffered Amendment The Fourth practice to the doctor’s dental caused Initially, and seizure must the search Agent’s the action the amount of the confines of the within be considered $15,000. fact, In limitation Fourth Amendment. government The moved to dismiss the appeal to of this within consideration complaint grounds (1) on the that the Amendment of the Fourth confines United States had not consented to be suggested by taxpayers themselves sued; jurisdiction (2) the court lacked Brief, pp. arguing (Appellants’ matter; subject (3) over the and that 13) “assuming the finds that Court complaint failed to state a claim prohable to search warrant cause upon granted. which relief could be showing exist, prob- government’s government meantime, In had justify the extent of able cause did not photocopied records and re- the seized bar,” and seizures the searches originals. turned justfied only that “the affidavits The denied the taxpay- District Court which the for the records search preliminary withheld, VonderAhes’ motion for allegedly location ers had the VonderAhes employee Although of which District Court noted that Agents.” Treasury “general to described had warrants fail ade- to quately specify the area to be searched declares Fourth Amendment The or the items to be seized have their historical- people be secure “right to ly judicial met with disapproval,” held houses, papers and effects” persons, specific “the that warrants were as searches only “unreasonable practical” recognizing Any while supplied). (emphasis seizures” scope,” they overly “broad were prob- “not “upon issue shall therefor in a constitutional broad sense.” place “the describe shall cause” able persons or searched, “overly to be broad” cannot be re- What “probable As to things be seized.” in an abstract or man- academic solved found court cause,” only facts, the district in relation cir- ner but more were submitted purpose for, affidavits “the under, and the cumstances probable cause provide sufficient issued. The were the warrants violating were plaintiffs general effect, believe were, here warrants laws.” tax income They sought all fiscal records warrants. January 1, 1966 to the doctor from “probable the words cause” But relating to income date [June 1970] self-defining “probable cause” are not — expenses limited “but not to [books supporting affidavits for what? * * and records enumerated] describing quite specific in the al short, except yel legedly property, namely, concealed green cards, mate- was the identical No facts low sheets and cards. rial which had been delivered ex- to and alleged probable which showed Agent amined Holmes. general of a war for the issuance cause Supreme has charge stated No made rant. permissible Agent there are certain standards and records submitted books applied be in connection with the is- false and should Holmes were suance of Berger warrants. subjected proceed Thus To to a re-audit. York, v. New by the “warrant” method without first 1873, seeking by papers request 1883, S.Ct. 18 L.Ed.2d 1040 or the desired (1967), upon the Court subpoena said: based the should be strongest showing necessity if proceeding by “The search procedure is drastic to be availed such one,” Sgro States, a drastic v. United strictly of, it limited as consti should be 140, 206, 138, 210, 287 U.S. S.Ct. 53 tutionally although required. Therefore, (1932), L.Ed. and 77 carefully must be “probable to cause” there have been pre- so circumscribed toas for and seize vent unauthorized invasions of “the 1967, and cards for 1966 and there sanctity priva- a home and of man’s probable for a was no cause shown sei Boyd States, of life.” cies supra, and zure of all the doctor’s dental books 524, 630, U.S. records, pa personal private and his L.Ed. [29 746]. pers. Coolidge Hampshire, inAnd v. New seeking executing such a L.Ed.2d 564 general agents warrant, themselves (1971), said: responsibility must assume the for its second, objective distinct They breadth. could have restricted it necessary those deemed searches to the concealed items and thus have possible. should be as limited as ransacking procedure avoided the specific “general Here, the evil is the they, executing warrant, colonists, warrant” abhorred indulged. problem is not that of intru- and the explora- per se, general, There speci- remain for sion but of consideration belong- ficity tory unreasonableness, rummaging person’s in a issues war- subject analysis. ings. are omitted.] to similar [Citations held, appel- objec- accomplishes district court answer to rant this second contention, if requiring “particular records de- lants’ such tive scription” things warrant, seized under a search to be seized. themselves, compel to incriminate them Upon available the information requirement that all individu- that “the exactly government it, the what to knew subject liability keep als to tax accurate needed and wanted the rec it and where sufficiently re- financial records is not no neces ords located. There was investigation ac- lated to the of criminal sity for a of all massive re-examination tivity require protection to bearing expenses. on records income Fifth Amendment.” Commissioner, law, this the Were directly apposite cases are Two recent finding any deficiency, upon suspicious addressed the District issue every could order a tax seizure of Philpott, Court. Hill F.2d allegation payer’s upon records the mere (7th denied, 1971), cert. Cir. omission or an inaccurate state (1971). 991, 92 L.Ed.2d 5 might bespeak ment one item inaccu strikingly are those The facts similar to which, opinion, racies as to others in his allegedly now us. A Dr. Hill before records, necessitates of all kept of financial records referred set Important office home. as it is to separate letter as “red folders” government enable infor to obtain regular patient apart records. mation to assure itself of the correct re There, here, disclosure to the IRS as porting taxes, to believe is difficult em came from doctor’s former the draftsmen of the Fourth ployees, they in who said that had been Amendment did not insert “unreasona by Dr. structed Hill to these incinerate just ble” avoid in terrorem such an particular if “taxman” records Agents state as the created wreaked sought investigation. make an Pur here. warrant, agents suant a search Moreover, just as “unreasonable” can IRS searched both the office doctor’s applied warrant, to the breadth seizing indiscriminatingly home, much applied so more can it be much material as seized in case. the manner of execution because it is proceedings pending No criminal vividly which, the “manner” illustrat- immediately Dr. Hill. Hill Dr. case, ed the facts of this can create petitioned for the return of the seized prohibited and constitute the invasion. property suppression and its previously Agents mentioned, As ground violation of his constitutional allegedly could have concealed rights particularly under the Fourth — other means. If had de- and Fifth Amendments. The district question accuracy patient sired to petition. appeal court denied the On payments, they pa- could have made a majority reversed its but restricted tient check. All this could have oc- opinion “only contention, to the first orderly way in curred an without petitioner’s privi which is on the based causing only damage sudden assault not lege against Then self-incrimination.” prestige to the doctor’s finances and but lengthy followed a discussion and review undoubtedly possibly and inconvenience a Fifth self- of cases from Amendment pain many suffering patients and to the Judge point incrimination of view. who could not be treated for due weeks assuming in dissent, that the Fairchild disruption. to “adequately seizure was based on an grounded warrant,” wrote that:

The Amendment Fifth Assuming, Appellants however, have addressed much of that there is papers argument class point intimately of so that the use confiden- tial and so papers part of much a personhood seized be a they ought enjoy to superlative violation Amendment their Fifth privacy protected rights and be self-incrimination. The from warrant, proof might grounded adequately upon ther be upon adduced Thus, trial. rec- that the the court to me said: not seem it does question have the here ords Here, fact, way we have no They appear quired character. knowing that the instant records are and for business maintained have been beyond connected with the defendant purposes, the knowl- professional his counsel’s statement in the motion employees, and edge assistance of suppress they “may be” in his alleg- they were manner which handwriting. This, however, is an them, used, in a edly kept made important upon govern- fact which the the tax instrumentalities sense, ment must at trial bear the burden of offense claimed. evasion proof upon which, for all we may strong know, dispute. there Philpott, supra, was followed be Hill v. Blank, States point time opinion, appellant’s In our (1972), in the Sixth Cir- F.2d 383 premature. contention Amendment is was exe- warrant the search There cuit. depend upon Resolution will facts and gambling records on cuted June developments not before us at this time. 15, 1971, indict- on June seized stated, proceed As no civil or criminal -August 3, on returned and ment was ings currently pending. are When, as suppress was filed. 1971, motion to proceedings brought, if are relying Philpott, court, distinct The ample opportunity there will be for the and held the granted supra, the motion taxpayers appropriate objection to make self-incriminatory.” “per se records grounds on Fifth Amendment as the sit Appeals vacated The Court may uation warrant. the case for judgment and remanded attempt Were to decide the we court, That proceedings. further reaching Fifth Amendment “self-incrimination” “No result, that: said this problem time more facts far has been there advanced claim any would be for its Did needed resolution. language specific violation rights by the doctor waive these show- since Amendment” Fourth ing Agent (except all Holmes papers are not communicative “the green cards) sheets and his books? rec- papers business nature; are kept pur- Were the books poses business private personal and rather ords made, possibly with entries they are on their writings; and that doctor, persons, third actual of the crime with face instrumentalities by and himself ? declarations charged” appellant [Blank] instructions, any, give if did he What subject under to seizure employees entries, any, if ? What pro- Amendment Fourth personally did he make? These are but should not have cedures therefore many questions a few of the suppressed. supra, Blank, F.2d been might placed arise. even be rejected “the The court ration- at 387. category. “required in a records” majority deci- ale which underlies privilege practising profession and [Philpott] of the Seventh Circuit sion * gaining thereby public from the income ” ** Judge Fairchild’s and noted might carry with well not it the shield Philpott he “concern- dissent wherein immunity. so, Fifth Amendment If nature more ed himself with the government appellants both and will the under consideration opportunity when, have an yellow as and if the (quoting employed it” to obtain method green are of- sheets cards opinion Judge portion Fairchild’s the any proceeding, in fered il, criminal or civ- herein). previously quoted argue the effect of 26 U.S.C. § Nevertheless, appear it would from opinion the Blank Conclusion that the ultimate deci- sion admissibility as to or Fifth resolving Amend- problem here is one protection ment had to await such government fur- equities. the should to, objections including on the forthcoming based any ac- in be benefitted any proceeding, Amendment, in VonderAhes, or civil the tions by criminal, civil raised or be il- using by and records books criminal, the hand, VonderAhes. the legally the other seized. On from not benefit money should complaint

VonderAhes Insofar as the seeks and thus concealment damages Agents’ acts, acts own the because of the legally due payment taxes thereby the pecuniary avoid loss caused serious consequences il- possible bring appear and also the would this case within powers equitable legal concealment. Our the Bivens doctrine. Bivens Six hold we to much distorted would be Agents, Unknown Fed. Narcotics 403 U. (yel- allegedly concealed 29 L.Ed.2d 619 S. S.Ct. green cards) im- low sheets Supreme upheld (1971), the Court feder- properly seized. jurisdiction over a suit and held al damages may money be recovered in- us to have asked The VonderAhes any injuries consequent upon a vio- has become in their favor what voke by e., “exclusionary fed- rule,” lation of the Fourth Amendment i. known as Mr. in his eral concurring opinion Harlan officials. Justice all records at this time that to decree judici- pointed green including yellow seized, sheets ary’s “particular responsibility to assure any cannot therefrom cards and leads inter- any the vindication of constitutional proceeding, in civil introduced by the However, ests such as are embraced if criminal them. Bivens, supra, at Fourth Amendment.” are, represented, the tax- facts deliberately wrong, payers at 2010. their own pay taxes concealed income and failed damages complaint The amended seeks height thereon, would to be the seem $15,000 description for the of the doc- inequity them for the to enable courts Upon forth, practice. tor’s facts set Using equity profit thereby. as the to standard, appellants are have these is- entitled to re- as issued warrants adjudicated. Therefore, the com- sues plaint green yellow sheets and stricted to amended should not have been reasonable; be- cards would have been yond dismissed. these records were too broad. part, Order affirmed reversed Although the manner of execution part. quite unjustified, penalty of exclu- Judge (concurring ELY, Circuit taxpayers impose sion which the would dissenting part; part): equally unjustified. present Our task my place government’s allegedly I Moore’s ma- concur Brother is to obtaining jority opinion procedure condemns, on insofar as it unlawful and ex- grounds, ecuting the over- Amendment Vonder- Fourth warrants allegedly and the breadth of absolute- Ahes’ unlawful concealment on mythical ly scope justice, I of the search. and ob- unreasonable scales go Observing further, however, and hold serve this bal- the balance. appellants (or imbalance), so- possibly as to the ance we believe favor green yellow justice cards be- can achieved re- called sheets best be my opinion, versing seizure, in District cause their order of the dismissing thoroughly corrupted by complaint upon the intolerable and, directing mand, process search and sei- under which the the District Court grant injunctive ap- Moreover,. I do zure were conducted. relief pellants except Fifth Amendment not retreat as to the originally copies cards, forth me and the views set originally government may subject, endorsed both which were retain use Judges objections and Barnes.1 I note at however, Moore and all there- publication was 26, official opinion, with Its has now been March 1. That reconsideration, slip pending it originally our drawn, form on issued withheld was

373 agents required anything irreconcil- to do no that beginning I see original incriminating.” my opin- would to be tend No between conflict able authority proposition, opinion was cited in United for this our court’s ion reasoning (9th but the recently adopted is consistent with that 178 Cir. Murray, 492 F.2d v. States by flagrant case, abuse our Brothers 1973). In our Blank, process neces- Circuit United States v. Sixth and seizure search 383, disapproval. (1972), denied, 459 F.2d 385 judicial cert. our sitated Murray, despite 887, 111, 34 409 U.S. L.Ed.2d hand, other on the (1972). a cer- 143 as to whether question substantial testimonial, the was address book tain is a “We believe that there valid and upheld properly was of the book important distinction between records to a incident resulting from by sought subpoena and records arrest. lawful by search warrant. The sub- poena compels person receiving original opinion it written Because the by response identify his own does not me for a unanimous court opinion present documents delivered as the wholly ones de- with the conflict subpoena. Judge purpose in the Moore, scribed The search no useful reproducing warrant the whole involves no element of now be served compulsion upon potential my portion opinion. an actual That first pertinent, which I ad- defendant.” and to remains here, follows: reads as Wigmore, Evidence 2264 See 8 J. § appellants said, the con As we have (McNaughton 1961). rev. the searches and seizures tend violated and records their books accept We cannot mer substantive against compulsory privilege self-incrim approach. only it of this need One ask It under the Fifth ination Amendment. happen what would if the addressee of at had Government is clear that refused to allow search to possession acquire tempted of these appreciate magni conducted writings pursuant to a sub compulsion records and produced by tude of a search privi appellants poena, would have been slightest warrant. Without the hesita leged Fifth Amendment under the down, tion doors would be broken he Boyd production. v. United refuse their placed arrest, would be under and the 616, 524, States, L. 29 desired material would be How seized. (1886); Cohen, the imminence of Ed. v. such force can be con United States (9th 1967); anything compul sidered F.2d other than Cir. (9th escapes Judson, sion us. respect, In this we are States 322 F.2d 460 Cir. agreement 1963). however, Court, in full with result District warrant, reached our Brothers of ruled use the Seventh of a expressed Philpott, subpoena, Circuit as in Hill rather removed 144, (7th 1971); impermissible 445 F.2d aspect Cir. cert. “the com denied, pulsion” U.S. L. from these seizures. It (1971), approval Ed.2d 5 cited with proce that, reasoned under the warrant States, Couch v. United dure, appellants “merely passive position disagree Judge unofficially published I AFTR. 2d Moore’s at 31 development (1973). there is need for additional 73-1075 opinion’s My original further factual elements before the need resolution application approved by Amendment issue Fifth Amendment My think, reasons, arises. I can be suffi- least two law review See commentators. ciently my Filler, Protecting discerned the substance of Your Advice to Client: Attorneys, If L. comments. 2 Hofstra so-called Accountants prepared Comment, (1974) ; cards were not Use Rev. 259 n. 578 himself, Intervention, Summons, doctor obvious nota- and Constitu- only placed Rights, tions thereon could have been 2 Hofstra L.Rev. 177-8 tional (1974). his amanuensis. 374 Boyd v. States, 616, 116 330, 611, 34 L.Ed.2d 548 U.S. 6 524, S.Ct. 29 L.Ed. (1886), (1973). 746 the Su- preme Court considered a customs stat- strikingly The facts Hill are simi- required ute that pro- defendant to

lar to those at bar. The affidavits duce certain upon pain documents of an alleged support of the warrant that a finding adverse of fact if he failed to doctor maintained two sets of financial obey. Supreme The Court, considering categories patients records for two the Fourth and Fifth Amendments as employee that he had instructed an running “almost into other,” each struck destroy one man set “if tax visit- down the statute: investigation. ed the office to make an .” 445 F.2d at Govern- aggravating that certain “It true is ment, argued bar, case at seizure, search and incidents actual because the records were obtained entry man’s forcible into a such as only warrant, question search searching among pa- his house and complied whether the warrant with the wanting, pers, and to are this extent Fourth Amendment. proceeding under the act of 1874 government short, takes “In mitigation au- is a which was validity position of a that once the acts; it the former thorized the Fourth is established under object accomplishes the substantial fact alone Amendment—and forcing party acts in of those from a is not and —the Fifth Amendment against our It evidence himself. is be violated.” cannot opinion, therefore, compulsory that a production private papers of a man’s F.2d at 146. 445 charge against to establish a criminal States, Relying Boyd in- v. United him, property, forfeit or to supra, States, and Gouled v. United fra the Hill court scope within the of the fourth amend- rejected the Government’s constitution, ment to the in all cases Hayden, argument. It read Warden a search and seizure 1642, 294, 18 L.Ed.2d U.S. be, ingredient, because is material only (1967), overruling Gouled’s object pur- the sole and'effects (“mere fourth amendment pose of search seizure.” leaving rule”) pronouncements, intact 6 S.Ct. at 527-528. holding per- Fifth Amendment privileged books and records are sonal pro- Boyd, found Court Thus In search warrant. pri- requiring production cedure situation, pointed the Hill court papers pursuant to a vate books unwilling out, the accused remains unconstitutionally subpoena compelling “ source evidence: pro- despite the fact that . . . jury rec- “The knows the books and many ceeding question is divested of belong and the ords to the defendant aggravating of actual incidents speak entries he has made therein . search and seizure . ..” clearly him as as his own Court said: particularly true in voice. This seems “It be that it is the obnoxious prosecution in- for violation thing repulsive in its mildest and least come tax laws.” illegitimate form; but and unconstitu- footing F.2d at 149. practices get tional their first way, ap- namely, in that silent Further, suggestion pres- slight proaches deviations warrant, of a search in and of it- ence legal procedure.” modes self, aspects impermissible removes the compulsion, particularly untenable Id. at S.Ct. at 535. See Hale light Supreme of several cases Henkel, describing compulsion cov- the form of (1906) (“the 379-380, sub- L.Ed. 652 under the Fifth ered Amendment. compulsory the offense is the stance of private papers, production of whether rejected only police after the officer subpoena warrant or physi- under a search objection and directed the tecum, against person, which the duces proceed. officer’s direc- cian to corporation, or is enti- he individual physician be the administer tion to the protection.”) tled to petitioner’s objection consti- test over compulsion purposes of for the tuted suggests least, that Boyd very At the privilege.” the papers is private books a search at at 1831. See 384 U.S. compul- egregious of form more an even California, 263, 266- Gilbert 267, under sub- struck down that sion 1951, 1953, L.Ed.2d 87 S.Ct. course, That, is procedure. poena taking (1967) (holding that by the position taken antithesis handwriting exemplars form of is also in case. See this Court District meaning compulsion of the within the Procedure: Wright Federal Practice Amendment, that, mere “A Fifth but (“It (1969) is Criminal, n. 88 § handwriting exemplar, to the in contrast a distinction clear less much written, voice what is like the content compulsion produced [between body itself, identifying physical an or is produced by a search subpoena protection” be- outside its characteristic fully sound, con- or warrant] not the “communica- cause kind of protected with the interests sistent privilege) (empha- tion” covered privilege self-incrimina- added). sis Tax 941, tion”) ; Lipton, in Search Warrant Investigations, A.B.A.J. reasoning Following Fraud of the court (“It that the (1970) Circuit, is unthinkable below, and that of one the Sixth grant for the blanche carte will expected courts would have the Court not be that could of documents to hold that there was no Schmerber “compulsion” judicial or an administrative taking reached involved subpoena”). sample. the blood was in no Schmerber way “assurance, to make com- forced California, Similarly, in Schmerber v. pelled process, an incident 757, 761, 1826, 16 L. produced the articles de- are the ones (1965) (citing Boyd ap Ed.2d 908 Wigmore, supra manded.” 2264 at § petitioner hospitalized proval) fol Further, blood nature of the lowing police A automobile accident. sample proof taken was “the such that liquor petitioner’s officer smelled authenticity, other circum- or [its] noticing symptoms breath and other affecting [it], stances and must be drunkenness, placed him under arrest. persons, testimony made of other informing petitioner rights, After of his any employment without of the accused’s physician officer directed to take responsibility.” oath testimonial Id. sample despite petitioner’s a blood refus However, Court, the Schmerber as noted counsel, al, there on advice to consent expressly taking above, held that the report analysis to. A chemical sample objec- the blood over defendant’s blood, intoxication, which indicated “compulsion” tion was within thfe mean- objec was admitted into over evidence ing of the Fifth Amendment. appeal, Supreme up tion. On present case, as in Schmerber the admission held of the evidence Gilbert, appellants “passive said: agents” through to these searches no They repeatedly requir- choice of their own. not be denied that “It could objected their home ing petitioner with- searches of submit to office, claiming specifically analysis of his their drawal chemical including rights, constitutional compelled him to sub- blood the State privilege. Thus, fifth attempt amendment mit to an discover employed might prosecute him warrants in- this be used to tools, stance were coercive and it to- He submitted for a criminal offense. tally say did not unrealistic opinion, ure under The Court’s Gouled. “compulsion.” involve significant however, contained caveat: Compulsion alone, however, is not clothing “The items of involved enough to constitute a violation of the are not ‘testimonial’ or ‘communi- case Amendment. As noted Schmer- nature, and their introduc- cative’ ber, U.S. at compel respon- tion therefore did not “compulsion fingerprinting, to submit against him- dent to become a witness photographing, measurements, or to self in violation the Fifth Amend- speak identification, ap- or write for to Califor- Schmerber State of ment. v. pear court, stand, in to to assume a nia, 1826, 16 384 U.S. 757 S.Ct. [86 stance, walk, particular to or a to make This does L.Ed.2d case thus 908]. gesture,” prohibited is not under the require that consider whether we Fifth Amendment: there are of evidential value items very precludes whose nature them emerged, “The distinction which has being object expressed from the ways, of a reasonable often in different is privilege against search and seizure.” the is a bar

compelling or ‘communications’ ‘testi- 302-303, 387 at U.S. 87 S.Ct. at 1648. mony,’ compulsion accompanying See note recent the suspect makes a or accused the source amendments to the Federal Rules of physical of,‘real or evidence’ does not Procedure, Criminal 48 F.R.D. 629-630 violate it.” (disclaiming (1970) intention ab- rogate protection Fifth Id. Amendment self-incrimination Thus, inquiry our must narrow to a de- stating that, solely “items which are papers, termination of whether ‘testimonial’ or ‘communicative’ na- books and records seized in the instant might ture grounds.”) well be inadmissible on those case were “testimonial” or “communica- tive” in nature such accused light upon Further cast were the mean- forced to bear witness ing phrases “testimonial” and themselves. “communicative” in Schmerber when the expressly Schmerber, noted, the Court dictum, In that the .Court results “ compulsion of re- . compelled noted that . . of a lie detector test would be communications, sponses which are also purposes “testimonial” for the subpoena example, compliance with a Amendment, for Fifth notwithstanding the papers produce . one’s . fact seemingly that such are tests di- privilege. 384 at the fifth’s U.S. within rected “physi- towards the elicitation of year 764, after 86 at 1832. One cal 764, S.Ct. evidence.” 384 U.S. at decided, contrast, 1826. In Byers, Court over- California v. Schmerber 424, 431-433, 402 long 1535, evidence” U.S. “mere 91 ruled the criticized S.Ct. 29 States, (1971), L.Ed.2d 9 255 U.S. v. United held that it rule of Gouled would be “extravagant” (1921), an 261, 298, privi- 41 65 L.Ed. 647 extension of the S.Ct. lege apply ev- upheld certain the Fifth Amendment to the admission a declaring illegal California despite Amend- statute petitioner’s Fifth idence stop motorist to Hayden, fail to 387 v. after an ment claims. Warden acci- dent 1642, and to 294, 782 furnish his L.Ed.2d name and 87 18 ad- S.Ct. U.S. (au- require- (1967); dress. The Court 3103a held that the see also 18 U.S.C. § stopping “to thorizing ment of no a warrant is more testimonial issuance any property person custody requiring and seize of- speak walk and disclosure of a criminal or that the constitutes evidence neutral, essentially quirement non- the laws is an fense violation States”). objects seized act. United testimonial See States United 222-223, jacket trousers, Wade, 218, S.Ct. Hayden 87 were 388 (1967) (requiring 1926, seiz- previously from L.Ed.2d cap, immune 1149 items person pros- 322, 327, S. States, to exhibit accused 409 U.S. lineup (1973). police in- 615, at witnesses L.Ed.2d ecution Ct. “ compulsion clearly no . . subject . volved records significance”); owner- testimonial mention not to possession, 263, 266- California, the time appellants ship, Gilbert “possession L.Ed.2d bears handwriting personal (“A ex- (1967) relationship mere com- closest emplar, to the content Fifth Amend- in contrast pulsion forbidden body Thus, written, like the voice what Id. at ment.” identifying physical itself, sei- protected charac- is an these Amendment] its [Fifth teristic outside Amendment. zure .”) (emphasis add- protection. . . Court’s District reverse I would ed). directing entirety, its Order appellants here, writ- the books and case injunction ings included seized under warrant granted. appellants alone, rather

items party, The third made entries. page description in the

30 inventory Government’s gam- items of seized runs personal from

ut checks insurance any- applications, and includes almost

thing writing The list that had on it. includes, example: map Bull for of America, UNITED STATES River, Montana; per- Sandei’s, several Plaintiff, letters; approximately pages of sonal v. cards; notes;” “miscellaneous business GENERAL DOUGLAS MacARTHUR dates; paper no with names but SENIOR VILLAGE, INC., al., et survey pages three information on Defendants-Appellees, property; Montana miscellaneous sheets Holding Corp., D.C.R. al., et Defendants- figures paper appearing;” “with Appellants. U-Haul; appoint- rental contract Nos. 23 to 74-1065, Dockets containing books; envelope ment 74-1066, and 74-1314. forms;” “employment “letters of corre- spondents purchase of relative to the United States Appeals, “design estimates.”; property;” and Second Circuit. Argued Sept. 9, 1974. scope these searches went well beyond perscrutation “real or DecidedNov. physical evidence.” Internal Reve- Agents obviously looking nue writings bespeak appellants’

that would and, indeed, guilt, have found notes,

them. The numerous sheets figures estimates, and the several correspondence kind of are the

letters writing” act

“communicative personal

would reflect author’s opinions

thoughts, and conclusions. California, supra.

Schmerber compulsion

Finally, the testimonial appellants

levied these violated “private individu- inner sanctum of feeling thought”

al protect. Couch Amendment seeks notes comprise and Code; further home, and which planned new and cor- VonderAhe’s commit- of offenses respondence advisory constitute an investment with of the United of the laws patient in violation ted Hundreds of record service. meaning Section of receptionist’s within States were taken. The cards Code.” States Title 1001 of desk also searched. allegation sup- in the There was no The Home Agent porting Holmes affidavit of technique warrant enforcement The material listed he by to re-audit the by Agents employed at the home was already recon- him as audited and office. quite that used at the similar to principal affidavit of ciled. way in, They made a room forced their Agent Romano, he has he states that premises, of room search the amount of to believe that “reason Mrs. the contents of Vonder- searched during patients fees collected purse that of a and even Mrs. Ahe’s Perez, ap- years names 1966 and whose visiting friend. Items were peared information sheets involving seized in an unused bedroom intentionally segregated by Dr. the VonderAhe’s real estate and records Comegys Mrs. and not VonderAhe and Again, labeled “New House.” over Agent available Revenue made Agent objection, way an IRS forced his examination for the audit Holmes into the VonderAhe’s car which was Thus, early what been 1969." had parked garage in their and searched it. had vealed and what had been concealed Papers garage taken from the included abundantly already been made clear. many patients’ records, folders “lab slips,” etc. cartons of seized Several the Warrants The Execution of material were loaded into a truck and away. The taken Office According protests oral of the VonderAhe, to Dr. The VonderAhes at about legal protests. M., quickly 8:15 A. followed on June three (elsewhere procedural point view, five) From a Rule stated as four or Trea- sury 41(e) Agents Rules of way of the Federal Criminal forced their into his doctor They unavailable apparently Procedure was inner office. took over had premises, neither he nor wife been because and continued search their no criminal case indicted and there was until 1:15 The necessitat- P.M. against However, being they them. patient appointments ed cancellations potential were well civil and Agents patient aware because the seized cards alleged consequences con- criminal charge virtually and records and were in They quite alleges cealment of records. natu- of the office. The doctor that he rally to be these records injunction desired cause granted government’s by the Commissioner unavailable use motion to dismiss. doctor and his they Accordingly, Jury. or appealed. Grand wife brought independent civil action “an pursuant prior Jurisdiction to indictment seeking equity power Court’s inherent question posed A threshold sup- property return seized and its jurisdiction respect to our to enter pression any subsequent as evidence proceedings.” appeal. government tain this con (Applts’ p. criminal Br. jurisdiction tends that are without we 14). By “independent equitable ac- because the decision of the district court they sought appeala- tion” bility avoid the did not in a result final order re might question have other- quired by 28 U.S.C. 1291. We have § having Thus, invoked the wise arisen. dismissing held an order an action court, equity powers must for the return of documents and for the In their abide this standard. com- suppression ap of evidence is final and they sought plaint, July filed pealable plaintiff, here, when a seeks (1) the return of their books and rec- recovery copies and when no criminal ords; against (2) injunction use an pending. action is Goodman v. United allegedly illegally property, States, (9th 1966); F.2d 166 Cir. investigation seized, prosecu- Selinger (9th Biglar, 377 F.2d 542 (3) injunction them; tion 1967). finding appealability Cir. Our copies use notes made Ryan, is reinforced

Case Details

Case Name: Donn Vonderahe and Barbara Vonderahe v. Roy H. Howland

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 18, 1975

Citation: 508 F.2d 364

Docket Number: 71-1982

Court Abbreviation: 9th Cir.