Harry S. Stonehill and Robert P. Brooks v. United States

Bеfore CHAMBERS and BROWN * ING, Judges, BELLONI, Circuit Judge. District BELLONI, Judge. District appeal1 interlocutory This is from an order District United States Court for the District of Central Cali appellants’ fornia which denied motion suppress in a civil action brought by the United States of Ameri ca. January, 1965, seeking complaint

filed a foreclosure securing Federal tax Federal liens in- against outstanding come tax liabilities 1292(b). Belloni, Pursuant 28 U.S.C. § Hon. Robert C. Judge, Oregon, District District of sit- ting by designation. Harry began Brooks S. Stonehill Robert P. Stonehill and Brooks business through together Tax- Philippines for 1958 inclusive. shortly after (appellants Brooks) payers developed II Stonehill World War a substan- suppress certain tial businesses, including moved to number of Company. They claimed had been obtained violation United States Tobacco rights. taxpayers’ of, controlled, many Constitutional were officers suc- corporations. cessful As district hearing The trial court held on aptly court so stated: motion, entering later written order its eminently “So successful were in denying sup- opinion and the motion to ascending the ladder of finance that they brought themselves and their ac- press. Stonehill, 274 United States v. Subsequently, F.Supp. 420. the trial tivities attention Phil- granted court a certificate under 28 ippine and to the attention 1292(b); taxpayers pe- U.S.C. then § of the United States Internal Revenue granted permis- and titioned were F.Supp. p. Service.” 274 appeal sion from this court to from the order. Robert Chandler was attached to Embassy United States in Manila as the question before this court representative Internal Revenue Service the district in whether court erred de for the Far East. His included duties nying taxpayers’ suppress. motion to auditing collecting returns of taxes Taxpayers contend that documents residing taxpayers from American in his question suppressed should have been territory. In the income re- tax by foreign as evidence if seized even of Harry turn of S. Stonehill for cal- foreign country, ficers in a because year endar 1958 was sent to Chandler illegal by searches and seizures were personnel, for audit. Due to lack of United States Constitutional standards Nothing audit was not conducted. fur- (in violation the Fourth Amend ther was done. ment). Taxpayers also contend that the concluding Spielman vice-pres- court erred district' Menhart agents did Company action of United States ident of States Tobacco “participa discharge by constitute until his Stonehill and Brooks; illegal leaving searches seizures. tion” before tobacco company copied photographed find no merit to these contentions We he and affirm district court’s order.2 certain he documents records which wrongdoing felt disclosed on the OF FACTS

STATEMENT taxpayers. December, 1961, Spielman Hawley, contacted Bu- Robert a Federal Taxpayers’ suppress motion seeks to Investigation agent reau of attached Phil- numerous seized in documents Manila, Embassy the American who during began ippines March raids which in turn directed him to Chandler. understanding 1962. Better is- however, requires sues, that we ex- Spielman After Chandler met on De- place which took over a amine events period Spiel- cember concluded years. During several possible man’s information indicated tax years question, taxpayers tax Stone- taxpayers liabilities due from the hill and Brooks were American citizens might information of in- residing Philippines. tax in- Philippine terest authorities. On vestigation 22, 1961, relayed on which assessments are December Chandler inception Philippine Spielman’s based had its information to his office C., Washington, telling Islands. D. also them that finding participa- corporate documents, Our there was no sion of whether purposes tion Federal makes unnec- the evidence could be used for essary raised, e., impeachment, to decide other issues i. and whether the exclu- taxpayers’ standing suppres- sionary applies rule to civil cases. diagram prepared investigation beyond of- his one Chandler of tax recommending prepared and a memorandum capabilities, fice’s assigned. inadvertently him on another fell in- additional They spent time to the hands of the NBI. considerable Chandler repeat- collecting information, intended as directions to NBI. Spielman headquarters asking assist- edly night before the raids Chandler ance. was called to Col. Lukban’s home. A large finally Hawley persuad- personnel number of NBI Chandler present. also was shown a Spielman to meet with the ed Spiel- authorities; 27, 1962, paper January described as a warrant and was Lukban, who was asked for his He said Colonel comment. met with man nothing charge Bu- knew about National search warrants but appeared right. Investigation. copy time all For some reau of meeting, Philippine point inquiry Na- prior At this the Chandler made his this to Investigation (NBI) Army-Navy the about Bureau of Club. tional investigating and Stonehill had been Philippine de- After the authorities they Brooks, gathering evidence which prior raids, cided to the but to conduct deporting and hoped Stonehill to use raids, permission the Chandler secured unde- Philippines from the Brooks copy and Col. Lukban from to examine aliens. sirable However, records seized the raids. authorities, Philippine purpose of their it clear that the raids the investigation, to deportation decided was to uncover violations of premises. law, taxpayers’ Unit- raid business not tо obtain the the raids, learning agents. Upon proposed the ed States objected, requesting Robert Chandler taxpayers The on the and raids it such action be taken or Saturday, corporations commenced postponed. request was His at least P.M., 3, 1962, at 1:00 at March about disregarded. be- taxpayers were arrested which time gan raids, planning because and agents simultaneously NBI raid- and 200 friends, and Chandler Col. Lukban were taxpayers ed the business offices of preparation meet- the numerous some of corporations. 17 different and some ings Be- held home. were Chandler’s possession NBI cor- took various go Spielman NBI to to afraid cause gather porate premises began and to headquarters, meetings Spiel- between seized voluminous documents and records man and NBI were also held raids, process from in the a took which Chandler’s home. to several some sev- hours locations planning days did not Chandler eral at others. assist raids, meeting although NBI at one started, Robert When raids present ask when Chandler was did his office and two from Chandler Army-Navy was included Club temporary to a structure went small premises on list of raided. from the NBI street owned across the information furnished Chandler headquarters for the con- NBI wait by Spielman NBI for this was the basis raids, hoping to obtain clusion of the including question. suggested any were' the NBI which from records building; con- when raids were They all after- there seized. remained ducted it was included. noon, in the P.M. read about 5:00 supervision evening paper taxpayers had Under Lukban Col. (the then-Secretary busi- Jose Diokno arrested their various raided, Republic them to be- Justice Phil- which lead nesses ippines), completed. prepara- NBI About all the raids lieve made were evening, process Lukban Col. tions for these raids. P.M. 10:00 relaying Spielman, There office. information from them to come to his asked large they and man told and the of records both Chandler saw a volume agent in the NBI about. NBI did not had been seized documents which copy permission requested seem to know about it and asked Chand- point stepped The re- ler in- photogrаph of them. out. Chandler some or office, denied, pointed generally quest Lukban indi- out Col. storage area, doc- cating location of the record records left. about un- He was on uments made available would not be catalogued, examined, minutes and did not enter room five til had been next or examine records. the NBI. The and inventoried arrangements permit day were made to 5, 1962, all, some, On March copy photograph Robert Chandler to of the seized records were made avail- some of the documents. agents for first to United States able associates time. After an examination of these and his While Chandler office, records, an NBI the Internal Revenue Service Lukban’s Col. opened investigation ac- fraud tax- requested the assistance of records, ultimately resulting jeop- payers, to determine countant ardy large in a ware- assessments which are basis number seized this suit. States Tobacco Com- house of the United significant; pany, too OPINION there were many bring headquarters and NBI hearing lengthy After agent to what NBI did not know the pick suppress documents, to motion these up. Lukban asked Chandler Col. judge opin entered district his written go help NBI to to the warehouse to (274 420), F.Supp. ion found as agreed. agent. Chandler and Chandler foregoing. are facts of We most warehouse, two associates went to the they by findings are bound unless pointed records which out the books and clearly believe, erroneous. as a re We significant appeared be most to sult of our review of the ten-volume view, accounting point left. of an exhibits, transcript and the fore They made no examination of detailed going narrative is a fair statement of them, records, took with no records the events. includes some facts done and did not know what was by judge, contains found the district they these left. records after Indeed, nothing in conflict with them. to find no conflict the district'

Chandler drove from the warehouse we between judge’s findings record, al main office of To- and the the United States objec Company, away, though emphatic appellants several bacco blocks take charge they findings the NBI tion of the and believe asked to some storage Spiel- had found the record room other events3 are material and consti- Secretary companies’ example, to For Diokno flew business Kong Hong February in- on 1962 and raided in connection with the NBI’s vestigation. Attorney Ken- saw an aide of General Appellants rely copy nedy, Seigenthaler. a At meet- also a of a Mr. this Secretary requested help January ing, memorandum sent Diokno representa investigating Service from the Revenue specifically, requested taxpayers; Inter tive Manila to the office of experts Operations Washington, national tobacco the services some participation C., indicating investigating him in as S. U. made available D. (Defendants’ activity taxpayers’ Philippine Ex. in the March raids. ) companies. help E. This reaffirms No re- document tobacco prior being position quested Secretary by S. to the raids Diokno U. yet ready meeting, to take interested but States this any meeting. Further, action. Mr. Secretary do not think that eithеr the visit admitted that We Diokno has Kennedy’s help requested im- nor to Mr. assistant States the United appellants’ posi- peaching provided. document aids Around the time never Kong trip, Secretary Hong Diokno tion. taxpayers arrested to have the decided Supreme Prior decisions of of sufficient involvement tute evidence Ohio, Mapp 367 ‍‌​​​​‌​‌​​‌​​​‌​‌‌​​‌‌‌‌‌​​‌​​‌‌​​‌‌​‌‌‌‌​‌​​​​‌‍U.S. prove Court States agree. L.Ed.2d 84 A.L.R.2d instigated do not the raids. We (1961) and Elkins v. il been to have The raids found L.Ed.2d Phil legal and seizures searches (1960), wherein the Court violating sec ippine Supreme a as held the Fourth Amendment was Philippine Constitution tion incorporated in Amend- the Fourteenth Amend Fourth to our which is identical applicable ment and to State therefore were defec ment. The search warrants agencies, pertinent inquire it was specific been offense had tive because whether Federal so substantial- officials p. If the alleged. F.Supp. at ly participated in a raid State offi- by United had been conducted joint cials so to convert the raid into il agents, would have States venture between State and Federal of- legal our Constitution. under subject pro- ficials and therefore Amendment Neither Fourth visions the Fourth Amendment. nor inquiry equally Constitution the United States essentials are evidence, exclusionary de pertinent determining rule of whether Fed- signed substantially from vi participat- Federal officers to deter eral officials so ap Amendment, olating by foreign Fourth ed in raid officials foreign plicable joint officials. acts of convert raid into venture Brulay 383 F.2d between the United States the for- reasoning eign government subject and therefore provisions is: sanctions of Fourth Amendment. 1) is admissible all relevant evidence holding rule; reported exclusionary In all Federal cases unless there a search search, Federal does 2) Amendment Fourth even participation Federal officers has by provide for exclusion itself far more than here. The extensive obtained; unlawfully Supreme Court, Byars in v. United Court, 3) Supreme in v. Weeks the States, supra, held a State search 383, States, 34 S.Ct. 232 U.S. United the was act of the United seizure (1914), to in 341, order L.Ed. 652 58 States and Amend violated the Fourth by to abide officers force United States partici ment because of substantial Amendment, ex- created the Fourth pation search seizure a rule; clusionary officers, agent. Federal State their way warrant, to a execute search asked do 4) nothing courts can our there prohibition agent (Adams) a Federal to foreign to require officers will arriving accompany Upon them. at by our Constitution. abide searched, of be each ficers, including assigned Amendment Thus, Adams, Fourth a foreign officials apply could room to con search the search was substantially so authority Federal ducted under the State as to convert participated in the raids so warrant. Adams searched kitchen joint (counterfeit between stamps them into ventures and found some foreign strip whiskey officials. stamps type and the United States used on States, Byars bond), 273 U.S. v. bottled and a State officer (1927); Lus stamps 71 520 47 S.Ct. L.Ed. also found in another room. tig States, kept found, S. stamps and, Adams he (1949); Sy they represent because a L.Ed. did viola Ct. laws, any 178 F.2d 615 tion of mons v. United the State offi State (9th 1949); stamps cer Sloane v. turned over the other Adams. The court found that Adams participated a supra. Lustig, as Federal enforcement Se- something Agent officer on the chance cret Service Greene had reason to suspect would be disclosed of official interest two defendants of violations agent. to him such the counterfeiting statutes, but, upon substantial This participation by looking through keyhole found Adams was to be of the sus- room, pects’ under color of his Federal office and could see evidence of search, effect, joint reported a substance violation and this fact operation police. of the local Federal of local Greene also told the local (273 p. police ficers. The at court U.S. he “confident that some- 250) thing going at police stated: on.” The local alleging secured arrest warrants viola- though “The effect same tions of State law and went to the hotel undertaking engaged as one room make the arrests. The defend- exclusivеly own.” room; police ants were not partici- Emphasizing fact mere searched the room and discovered evi- pation by a would Federal officer counterfeiting dence which indicated undertaking, render search Federal currency. police The local then called court, p. p. at at Greene, police who had remained at stated: headquarters because he was “curious “ * * * vigilant court be must see what would find.” went Greene to scrutinize the facts attendant to the hotel room and examined eye pre- to detect and a hand to police. items discovered local vent violations of the Constitution Upon returning, ar- the defendants were circuitous and indirect methods.” searched, with in- rested and Greene noted, p. p. The court also specting pock- items found of 47 S.Ct.: seized were ets. Some of articles questions present room, given “Similar have been to Greene before he left the * * * variety eventually ed forms and all over turned rests, present each of them as the case him. On these facts does, upon peculiar participation its own facts found on the ^[*] *. " Federal agent, stating: long in it participation,.must as he was before “So acts of be such completely object search the search and can said seizure joint accomplished, must deemed to operation joint venture participated it.” between and the State p. foreign p. government. 1374. or at S.Ct. at Whether joint search does a can become venture opinion The court was of that only comparison by determined be a of Greene’s activities were not severable agent what the Federal did in the and were therefore of search totality search and seizure with carried on in the in room. The court done in acts search In and seizure. Lustig par- held that in to differentiate .Byars, the court concluded that ticipation beginning join- from the and agent present reason a Federal ing a search before it had run course its the time of raid select that was to would in be to draw too fine a line subsequently evidence which was intrо- Byars application doctrine. prosecution. duced the Federal Fur- hoping went to hotel to Greene room ther, agent certain Federal selected find evidence which could be a used according to the sole criterion prosecution, Federal he and of- the State prosecution, its use a Federal especially themselves ficers concerned kept possession exclusive of this evi- turning up evidence of violations at all dence times. counterfeiting laws, the Federal and the by Subsequently, re- taken or articles either Lustig agent Byars affirmed the doctrine Federal were turned over to the clearly previously par- United during Greene Customs had search. States ticipated capacity alerted Mexican Police to the as a Federal Federal his searching possible activities, agent for defendant’s the court found and was participation States in the ar- violations. Federal seizure, and, further, rest or Corngold F.2d not actions of the Mexican officers had (9th 1966), another case whеre instigated by been United States Customs agent a to was held action of Federal held Narcotics The court officials. Corngold, participation. In Federal properly the seized tablets package delivered to airline an admitted. Angeles shipment New Los for agent suspect- York. A Federal customs In Birdsell v. United F.2d package contraband and ed contained 1965), cert. denied 382 employee. so informed airline an L.Ed.2d instigated agent participat- customs allegedly objected to Birdsell opening inspecting ed in the obtained in violation the Fourth package A warrant. a search without The arrest and seizure Amendment. illegal held this be an divided court by of in Mexico Mexican were made (because the fail- search and seizure ficials, participation without finding warrant), ure to obtain a search agents. deputy sheriff A States Texas the airline the customs through passing happened who engaged joint employee had been town the Mexican did assist participation operation and the Federal by acting interpreter. The court being prevent would the evidence properly held the evidence have court, This in Federal court. admissible stating: admitted, doctrine, Byars relying stated: on the * * “* Amendment does the Fourth agent participates a federal “When made apply and searches to arrests joint effect endeavor ‘the in such a in Mexico Mexican officials engaged though he had is the same as law, if even violation of Mexican exclusively undertaking one persons Americans arrested are ” p. F.2d at own.’ gave infor- police American officers leading Corngold, arrest employee would mation airline p. 346 F.2d search.” conducted search agent, even Federal insistence of the opinion, in the Birdsell In a footnote reluctantly. then so he did Federal of- indicated court engage foreign police cases, by applying ex- ficials induced The above conscience, clusionary participation shocked rule, in conduct which found ex- might, Byars agents. then a Federal court doctrine Federal refuse powers, supervisory clearly participation of its requires ercise enjoy prosecution thorough question allow determined noted court case. fruits such action. of the facts each examination case; such a Birdsell was Brulay case. is the instant neither (9th 1967), opinion of ais recent supra, a relied In v. United discussed and Sloane this court which was agent gave informa- prohibition upon by Mexican Federal here. the trial court (con- informant Brulay from an tion obtained and seized authorities arrested deputy still) cerning to a Tijuana a municipal police- the location evidence. search a Brulay officers obtained stopped the car because sheriff. State men had rear, premises, warrant, heavy driving searched looked he was incriminating Sloane. appeared evidence him because arrested arresting him, over later turned was The evidence After to be nervous. Federal agent prosecution in ampheta- for they pounds of Federal discovered suppress Although motion in the trunk. сourt. Sloane’s mine tablets evidence was denied. The court stated facts at hand case agent require permit- that a placed Federal must not category in the indirectly holding ted to do that which he cases cannot that Federal did officers directly, do unlawfully and thus circumvent participate undertake or provisions of the Amendment an Fourth unconstitutional search and seizure. against principal unreasonable search and seizure. The leading factors to that However, in Sloane court held that conclusion are: agent the Federal neither ordered nor 1) any No United States selected search, directed the no there was evidence for use a in- United States participation, Federal and the motion to vestigation prosecution or for that —nor suppress properly denied. any Philippine matter did officer contrary, behalf. On the raids dealing “partici- Other cases with the instigated by Philip- planned were pation” question deserve brief mention. pine agents officers before United States In Shurman v. United invоlved; purpose became the sole 1955), a Federal narcotics Philip- raids to obtain evidence for officer informed a State officer he be- pine proceedings. lieved Shurman’s car contained narcotics. 2) All request any activities He did not action on the agents merely gave officer, of the connection with the raids took State place before or the raids commenced information. officer The State ar- Shurman, after their rested termination. in the found narcotics car, ultimately the case was turned 3) Only after the raids were com- prose- over to Federal authorities pleted catalogued and the documents were finding although court, cution. The agents given permis- the United States illegal the search lack of a copy documents, any, sion to warrant, admitted the evidence because might be of interest them. participation by officers, no Federal 4) There cooperation such between Federal agents attempting States prevent State the use to shortcircuit the Fоurth Amendment evidence, Clearly, of the was shown. rights taxpayers, proscribed giving information, more, without language Byars (“by in the case participation does not amount or make methods.”) and indirect circuitous joint later search venture. clearly agents 5) The States Symons States, supra, In objected asking raids, Federal hours who arrived several place take or at least either not after an initial and seizure search they postponed. charge officers took State 6) the United When States (narcotics), were held not Spielman’s made information available participated have in the arrest or authorities, pres- the search and seizure. The casual whatsoever, requesting any much action ence of a Federal officer the scene instigating less unlawful search. to make a search not sufficient search should also be noted under, participant Federal officer warrants; illegal search due to defective Byars doctrine. might properly prepared, which, requirements. satisfied Constitutional Brown, F.Suрp. States v. Brown, (E.D.Va.1957). did officials a Federal Since United States search, but inadvertently participate unlawful officer arrived at the scene having contested evidence search, come to the rather obtained State manner, the denial matter. Also see in a lawful address another proper Myers States, suppress 49 F.2d 230 to v. United motion (4th the District Court 1931), interlocutory of order Cir. ‍‌​​​​‌​‌​​‌​​​‌​‌‌​​‌‌‌‌‌​​‌​​‌‌​​‌‌​‌‌‌‌​‌​​​​‌‍and United States v. Evans, (D.Md.1960). F.Supp. is affirmed. 179 834

747 Judge (dissent- BROWNING, equally is clear that the raids would be Circuit ing) lawless Amendment.5 under Fourth : evi concludes that by Contrary impression left to dence is nonetheless in fed admissible it holds majority, the evidence eral for court because was seized searches admissible was obtained eign officials, whom the Fourth flagrantly basic violated seizures which apply,6 Amendment does not Philippine provisions Constitution of turned over to United States directly the Fourth borrowed Lustig platter.” “on a United silver v. The warrants Amendment.1 1372, 79, States, 74, 338 U.S. 69 S.Ct. probable More “upon cause.”2 issued (1949). 93 L.Ed. 1819 warrants, over, con general language de “particularly taining no doctrine, plattеr” Under “silver * * * things be scribing evidence seized state officers vio suppressing the evidence seized.”3 of lation Fourth Amendment standards Philippines Supreme Court of was, until decision of Elkins v. United validity said, uphold war of “To States, 1437, 206, L. 364 U.S. 80 4 S.Ct. question wipe out rants would be a (1960),7 Ed.2d 1669 admissible completely fundamental one the most purpose trial federal court unless guaranteed rights * * *” our Constitution. obtain search was to Diokno, Phil. v. 20 Stonehill (Gambino federal offense United v. 383, (1967).4 Sup.Ct.Rpts.Ann. 392 States, 137, 310, 72 48 275 U.S. S.Ct. 1(3). III, Supreme 1. Art. § Phil.Const. Court con sweeping authorization demned this “openly contravening applications explicit 2. for the stated warrants com being Rights seized “are the articles be our mand of things Bills — that com particularly used or intended to used de to be seized felony, tending wit: Violation mission of a its scribed — as well as major objective: to defeat Laws, gen Bank Tariff of the Central the elimination of Laws, Revenue Internal Code Phil.Sup.Ct.Rpts.Ann. Customs eral warrants.” 20 descrip (a Penal Code” and the Revised 393. 1,000 offenses), covering tion about sweeping 4. The and indiscriminate manner place “has been to be searched which the warrants were executed sus- meeting place o'r observed to be the judgment. the court’s Two hundred tains agents in where various accommodation office National Bureau illegal meet in connection with dividuals Investigation occupied separate of premises, 32 purpose for the of defraud transactions rummaged through private and ing government.” A few added hours, for more 12 business files than “the has been observed as same also away trucked thousands of documents. cigarette illegally imported place where kept papers being e.g., See, Texas, cut are Stanford v. 379 U.S. 506, 476, (1965); Slitter Machine.” 431 Chambon 85 S.Ct. 13 L.Ed.2d Philip 192, States, As the v. Marron impossible pines held, 74, 195-196, “it was L.Ed. 231 judges Boyd (1927); who issued the warrants v. cause,” probable 616, 624-630, 524, found the existence 29 L.Ed. 746 parties showing (1886) ; Saylor that the for there F. v. United sought- against (1967); warrants were whom the Pow 2d Ct.Cl. acts, “performed particular U.S.App.D.C. Zuckert, or com ell v. omissions, violating given specific (1966). mitted provision laws. As of our criminal Brulay 383 F.2d fact, applications involved matter (9th 1967); v. Birdsell 348 States, any allege specific acts in this case do 346 F.2d * *." Diokno, 20 Phil. Stonehill Court, relying Elkins, (1967). Sup.Ct.Rpts.Ann. 7. In on its su- 391-92 pervisory power over the administration courts, justice seizure in federal held warrants criminal 3. The authorized illegally “doc- state raided all each of the 32 prose- papers showing officers is inadmissible in federal all busi- uments and/or cution. ness transactions.” 293, (1927)); L.Ed. 52 A.L.R. 1381 or United States and officials. participated short, unless federal officers in majority In the that federal holds Lustig States, the search. v. United may participate undertakings officers in 74, 1372, 69 S.Ct. 93 L.Ed. 1819 of violative Fourth Amendment stand- (1949); Byars States, v. United long participate ards so as do 28, 248, U.S. 47 S.Ct. 71 L.Ed. 520 too much. (1927). apparently This view derived Assuming misreading Byars platter” the “silver v. United governs There, 28, (1927). doctrine case,8 misap this it is U.S. 47 S.Ct. plied by majority. Amend held that Fourth Court applied ment “the in sub where search greater later, will As in be noted detail joint operation of stance and effect was finding the district court made no toas the local and federal officers.” purpose raids; applicabil- of the 33, 250. But 47 S.Ct. ity of the Gambino rule to this case there- desсription quoted language simply fore present cannot be determined on the Byars, not a of the formulation facts record. applied general standard to be dealing In with the determining applicability issue of American participation raids, majority If this Fourth in all cases.9 Amendment has regard- misconception itself, resurrected a Byars clear Su ing aspect Lustig. this platter” preme “silver so in Court made it doctrine which the laid Lustig the in The sole issue in Lustig to rest in States, supra. v. United Byars, terpretation application of as the read the Third Circuit repeatedly asserts the it.10 Re majority of reads this court view that the evidence here is admissible versing, said: Frankfurter Mr. Justice substantially unless the federal so * * Byars] participated “The crux [the convert as “joint a search them into is that a search is ventures” doctrine between may argued requires 32, v. It States See United at 249. that Elkins 47 S.Ct. 1947). (3d suppression Lustig, Cir. evidence 159 F.2d in a federal court only context, means whenever the statement this was seized in In by a fed- participation search which search would have a state violated the enterprise Fourth make the if does not Amendment conducted fed- eral officer Brulay undertaking eral officials. a federal of- federal (9th acting next 1967), though, as such. 383 F.2d 345 we ficer rejected begins: opinion Byars dealing paragraph result when a reasonably by foreign search here conducted attendant facts officials. “The It prohibition Brulay suggest has been federal said considered join state deterrence rationale of not invited exclusion- ary person might private squad rule and that the result as a there was in- participate been, consistent with other was asked bases for the rule. Review, participate See Ninth Circuit as a did officer, Ariz.L.Rev. enforcement federal chance, (1968) ; upon which was sub 273-74 53 Cornell L.Rev. 46 Texas L.Rev. that-something (1968); realized, sequently would 892-896 (1968). may to him interest 793-95 be disclosed also be that official Brulay agent.” S. applied where, should 273 U.S. ‍‌​​​​‌​‌​​‌​​​‌​‌‌​​‌‌‌‌‌​​‌​​‌‌​​‌‌​‌‌‌‌​‌​​​​‌‍at not be such as here, added). (emphasis the search violated local law as well Ct. at say: as Fourth Amendment went on to The Court standards. right question do not “We 9. The language same is true similar government avail itself federal Corngold v. United 367 F.2d improperly of state adopt We went on to upon entirely operating own ficers Lustig States, quot- the rule in rule is otherwise But account. ed hereinafter. itself, government act when federal majority, partici through Like ing such, the Third Circuit re- its Byars lied wrongful statement pates sei that “mere search participation in a state at 250 search of one 273 U.S. at zure.” who ais federal (emphasis added). officer does not render undertaking.” it a federal 273 U.S. at

749 inquiry by he had a hand must the official focus on what a federal * * did, only they in factor federal are it *. The officers since decisive subject applicability the determining of to the If the Fourth Amendment.12 by actuality Byars a share the of raids were is the conducted in case officials, acting such, federal the evi as enter- by total in the federal officer dence must seized be excluded. This selecting securing evi- prise of and legal standard, the and whether the means. by other than sanctioned dence “joint operation” sеarch or seizure was a ** it long he was as So conception —a to which there is ref no object was of search before Lustig.13 erence in accomplished, be completely he must Accepting findings of the district participated in it.” deemed to have court, majority supplemented as 78-79, at 69 S.Ct. court,14 this the American added). (emphasis enterprise contributed unlawful explained later Frankfurter Justice They brought respects: in at least these doctrine, “question that under Spielman and his information15 offending authorities, always of the been whether attention has any and, finds, majority “finally per was conducted or seizure search Spielman suaded” to meet with them. interest part by officers or federal Government, Chandler made his home it available or whether of the Federal meetings Spielman, NBI for and solely by with state officers conducted was “planning” “preparation” for the acting purposes.” exclusively for state (em meeti raids. Chandler attended these at 1455 U.S. “relaying ngs.16 In the in- course added).11 phasis dissenting from and state officials сollusion and deceit. was Frankfurter Justice Lustig plat- Kamisar, rejection Years Wolf and Ten “silver Court’s Later, majority did Minn.L.Rev. 1165-96 Elkins doctrine. ter” consequence (1959). The inevitable quarrel Frankfurter’s with Justice holding un- in Elkins that evidence doc- limits of that of the true statement constitutionally officers state trine. prosecu- must be from federal excluded Euziere See also regard 1959): tions without to whether federal test “The participated any way. officers federal is did the in all cases way participate the search?” later, 14. As will noted district court added). (emphasis respect findings no made some materially Brulay occurrences, premise these and made This is upon findings majority decisions, 6, supra, than the different Birdsell note respect this court does with to others. relies. which majority’s version, however, reflects gained kind of from 13. Little is to he participation the minimum American comparisons case-by-case ma- factual justified by which could be jority must since each case has undertaken evidence, accepted and is therefore Byars v. its own facts. be determined purposes argument here. 33, 47 S.Ct. Spielman’s Moreover, (1927). from 15. The value of is evident information it majority’s in those reflected in Chandler’s statement recitations participa- without authorities had cases lower court nothing. found, in- less federal there was tion present here, even as- than is volvement faithfully d suming re- 16. Chandler testifie meet those decisions holdings ings held, that he attended flected the pointed Lustig. Byars “most” of It has been them. Chandler described meetings niggardly role admin- in these of a “me and reluctant out Byars-Lustig Spielman rule diator” between NBI istration impossible imposed agents, evi- and testified that he tried “to ex lower courts some dentiary press (even Spielman [to NBI] more formidable what burdens upon trying search) During period foreign the victims to tell them.” in a tempted seizures, Chandler, assigned federal who had been NBI searches and NBI, searched, Spielman “sig “pointed formation” out” the diagram prepared mem and a nificant” books and records to seized.19 orandum of two From this search location the three suggested addi raided.17 Chandler an agents, American on théir initia own raided; tional and location be tive, went to another. There Chandler in suggestion Chandler, adopted.18 agents quired had whether NBI prior permission raids, to the “secured storage found a records room which Lukban to examine and Colonel Spielman mentioned, upon had and dis copy After records seized in the raids.” covering they not, that had hqd Chandler begun, and his the raids Chandler storage pointed assistants, out the location of the re two at Colonel Lukban’s being charge.20 quest, premises agent to one of room went NBI 18. Chandler 17. would be interested in.” some of the documents seized at cation and found them to be “the thing we ers took conformed to the these exhibits. nesses indicates that information “would the raids.” The searched and to mitting ments were dler identiifed much of the own. Chandler testified that raided.” in the detailed information as to that that all of these investigation in their offices and his once or “the location of liaison, On Spielman NBI among premises the information also met with officials twice a and fаce, “probably” prepared testified that he examined to assist the latter in trans- the matters things these documents disclose appellants’ which were testimony day. documents meeting's he probably to be seized. Chan- the course the raid- presumed Chandler testified they own, suggestions discussed writing concerned the of other wit- places affairs; contained to and going be used in these docu- sometimes and type records as his to be to he given NBI this and lo- house which he charge, testified: bobbins of implies. cant that simply leave, cance.” is all we could Spielman records put “indicated thought might hour the records house and Chandler testified Lukban.” —seemed to be the The with the shipped, on each reel than it was marked “I Having them mentioned to accompanied probably in the he and his two Chandler, agent in a The there done in a box.” After had leave, thing to the cigarette paper in the ware- investigation. didn’t as the majority and better box, be supplied, this, thought might at all. as the see was of acting important, him that [NBI] that for about half segregatеd what we the American seem to be paper agents majority’s supposed check omits to majority suggests. I on information agent then examined agents did not NBI that was Chandler, told him that “went that was and any signifi- placing to be more statement that agent familiar mention through Colonel signifi- agents over- who ^[*] * that for. majority’s pallid opinion, Again, majority 19. The and somewhat mis- in the some leading description of this occurrence lost flavor of the incident has been compared telling. should be with Chandler’s own testimony, leaving it is based. testified after Chandler location, Chandler testified that Colonel Lukban two search he and his first agent agents told him that an NBI into “had run main office of the went big Corp. area of records and he didn’t know wheth- Tobacco to see “equally qualified activity what — he was not determine NBI dis- er there was organized.” what he should take what he should- build- entered this Chandler take, help charge agent ing, n’t asked me if I would there the NBI myself go brought him — if and the men would testified: to him. Chandler going things down there and look at the records and “I him asked how just general questions see what should be taken and what should and after be left behind.” while I asked them if had foun d — agents storage and the two IBS room there was records cooperate Spielman spoken building “wanted to with” Lukban and this of, agent therefore went with an NBI I asked him if he had found that something peculiar where the records had been about —there was Upon arriving, agents room, found. the three I don’t recall the location of merely point apparently anyhow did not significant was; out the now what it, books and records at the ware- didn’t seem to be familiar with completely accomplished, he must majority’s these was conclusion participated in it.” “participation” in be deemed not constitute acts do 78, 79, within American the search platter” meaning doctrine “silver Thus, determining whether adoption entirely upon its not rest does agents participated American “joint operation” stand erroneous seizures, enterprise searches miscon participation. A second ard must be viewed as functional whole. significantly ception of law cоntributes contributions which American asserts result. raids, agents made, in select before the ll of United States activities ing “[a] places things to be searched and place took with the connection seized, unrelated cannot treated as their or after commenced before the raids enterprise. can the total Neither majority this termination” — and agents, our had conduct of after fac “principal of the identifies as one selecting begun, examining records, in leading lack conclusion of to its tors” segregating significant and for material it “participation.” established Since is seizure, consulting advising with majority’s own version agents NBI conduct search agents in were American that facts integral es; clearly acts an these following preceding in volved events part appropriation” “effective upon physical intrusion initial illicitly seized evidence.21 premises, that raided it is evident light of the Ameri- this conduct majority “raids” this uses word agents, consequence can it that is of highly sense. restricted they may “objected raids.” government obligеd our Officials of are rejected expressly The Constitution; it is to adhere to the application approach this to the enough limita- that violate its Lustig. platter As doctrine silver reluctantly. tions ais said “search Justice Frankfurter process. functional, merely physical point importance. This of central is the completed until effective government entirely is not Search “is Because our uninterrupt- appropriation of an Constitution,”22 it creature of the illicitly transaction, ob- ed is made of respect bound to the limitations which an objects subsequent proof of for powers, tained imposes upon Constitution its im- that, “It offense.” He concluded whether it home or abroad.23 acts at agent origi- acting federal whether a material Because joined in it while through agents,24 participated nated idea its long he progress. So search was searches and seizures object of the search in it flagrant before Amend- of the Fourth violation him about best I I tried to tell it as into trucks of the raids loaded the fruits Spielman remembеr from wliat could and left the two involved. said, didn’t seem under- 1, Covert, 5-6, 22. Reid v. 354 U.S. 77 S. up finally said, stand. He ‘Come 1225, (1957). Ct. 1 L.Ed.2d 1148 ” show me.’ Id.; ex that then showed 23. see States Chandler testified Kinsella storage Singleton, rel. 80 the NBI where the record 361 U.S. (1960); Har located. Mitchell v. room was L.Ed.2d mony, How.) 115, majority (13 L.Ed. omits to mention that agents subsequently Saylor (1852); NBI entered (1967); 898-901, removed F.2d room identified 179 Ct.Cl. Chandler records, U.S.App.D.C. Zuckert, a witness testified Powell v. accompanied (1966). NBI also that Chandler 366 F.2d See 639-640 although room, into the Chandler Best v. United (1st it. denied testimony Moreover, American the uncontradicted is clear throughout capac not until official established that several acted in their ities; contrary. NBI hours these events there is no claim to after ment, purpose acquired the evidence should be of the raids was to obtain evi- suppressed.25 Philippine proceedings” (em- dence for phasis added). so,

Even if this were not reversal second, indepen required majority finding would makes this ground inadequacy dent of the trial the face of substantial —the findings. contrary. Indeed, un has court’s official gaps partiсipated to fill de novo dertaken fact- who in the raids testified finding own; appellate directly its may only proper actually cooperating court do. The “were [the course is to remand the case trial Our in- Americans] tax case. mainly court further consideration terest was on the involvement of entry adequate findings.26 politicians possible wrongdoings country.” He testified that he was example mentioned ear One has been just told before the raids finding district court made no lier —the get “that vouchers, we needed all the purpose of the as to or not one whether accounting forms, account, books of for use in raids to obtain evidence may help them in He this tax case.” Indeed, prosecution. an American tax Philippine further testified that his su- findings appear court’s deliber trial perior indicated, raids, advance of majority ately The to avoid issue.27 get by flatly forms hand, “whatever we could opinion, other asserts on the accounting purpose of forms and that “the vouchers Philippine law, might help of not uncover should violations the United be States addition, evidence for the States obtain United was, shown to them.” There agents”; again, sole “[t]he an abundance circumstantial evidence majority in note 2 The caveats g., Municipal Court, v. e. Camara 387 U.S. opinion is are without The substance. 523, 530-531, ‍‌​​​​‌​‌​​‌​​​‌​‌‌​​‌‌‌‌‌​​‌​​‌‌​​‌‌​‌‌‌‌​‌​​​​‌‍1727, 87 S.Ct. 18 L.Ed.2d expressly standing sue of reserved (1967) City Seattle, ; 930 v. See 387 before the district court and not us. is 541, 1737, U.S. S.Ct. L.Ed.2d 943 87 18 “impeach respect, appellee’s With all due (1967); Silverthorne Co. v. Lumber argument, an ment” which calls for in States, 385, 251 U.S. 182 40 S.Ct. extension limited rule discriminate of the (1920). States, 62, of Walder v. United 347 U.S. Kelley Everglades Drainage Dist., 26. Cf. v. 354, (1954), 503 is 74 S.Ct. 98 L.Ed. 415, 1141, 319 U.S. 63 S.Ct. 87 L.Ed. frivolous. There is more substance little (1943) ; States, Irish 1485 225 v. United suggestion exclusionary 3, 1955); 2B W. Bar 8 inapplicable rule this is is because Holtzoff, ron & A. Federal Practice and Rogers civil case. 97 (Wright Procedure § ed. (1st relying upon 1938), F.2d 691 nearly Lumber findings Silverthorne Co. v. United 27. The most relevant of the 385, 392, 251 U.S. 319, 64 L.Ed. S.Ct. district read: court directly (1920), 24 A.L.R. 1426 “For time Luk some before Colonel , point. may Illegally evidence Speilman ban’s interview Mr. quasi-criminal context, be used such in. National Investi Bureau of proceeding. E.g., gation gathering as a forfеiture engaged One Plymouth Pennsylvania, concerning Sedan v. evidence activities 85 S.Ct. 14 L.Ed.2d Brooks, Stonehill and evidence which Boyd (1965); v. deportation proceedings was against for use * U.S. L.Ed. 746 *. them (1885). Although deportation During Court dis investigation, tinguished proceedings tax such as this Colonel Lukban a raid determined that quasi-criminal proceedings upon premises occupied for some made should be * * purposes Helvering Mitchell, Stonehill and Brooks F.Supp. 82 L.Ed. 917 at 421. (1938), illuminating findings more recent decisions These contain no direct state- purpose scope exclusionary purpose They of the ment as to the of the raids. clearly rule possibility indicate that would ex do not exclude the object tend the rule to “civil” suits of kind one raids was evi- to obtain See, instituted here. States dence for United States use. majority did that “Chandler raids was finds purposes that one of raids”; planning tax assist American for an to obtain only that the raids were trial court found prosecution.28 “instigated” or other course, function is, the exclusive majority’s United States officials. the conflict to resolve the trial court finding ignores the of Chan upon and that this evidence between plan participation in numerous dler’s its majority presumably bases which ning meetings preceded raids,30 may well be finding. the issue Since of the his of one locations selection required. remand determinative,29 preparation of the raided,31 deof many instances other identifying There are diagram and memorandum through the fact-finding scattered types novo places of docu be searched majority’s of the activities account ments seized.32 agents. examples will fewA diagram American finds that “inadvertently into suffice. fell and memorandum summary portion following laws, aof is a 28. The violation of internal revenue ble American interest this evidence. Bureau of Revenue against possible ante- tax Stonehill ease had no contact with the case before many appearance by Spielman’s dated In the course of the raids. raids Chandler receiving years. requested to, before after Both and his associates were did, segregate significant Ameri- Spielman’s local information ac- select and counting the need for aware of tax from the mass of docu- can records investigation premises. tax affairs of Stonehill’s ments found at one raided personnel request, As- it. to conduct Colonel Lukban but lacked At Chandler’s requested Washington, but agreed docu- sistance in advance make forthcoming. agents, Chandler to the American ments available Hawley Agent Spielman agents FBI Philippine took so. The examined fact did copied period told the Chandler authorities. documents over a thought initially space Philippine months, that in office authorities about three provided against by Philippine an American tax case there was authorities. Stonehill, but the evidence had States, 310, 29. Gambino v. United Lukban told secured. Colonel Chandler L.Ed. 52 A.L.R. story Spielman’s out he checked (1927) conducted involved a search investigation approval of an would seek solely to enforcement of a federal aid stat Philippine by testi- authorities. Chandler ute, Gam later decisions extended meetings with in the course fied that exclusionary bino’s to evidence seized rule prior Philippine to the raids contemplation pos by state officers it his interest was he made appellant’s clear that though the of sible federal use even state distinguished tax records as contemplated ficers use of the seized also relating political bribery or from those Lowrey prosecution. evidence in a state raids first told that matters. When States, 128 F.2d 478-479 contemplated, Chandler asked (8th 1942); Cir. Sutherland v. United postponed until obtain he could (4th Cir. F.2d 307-308 Washington. help Later 1937); Fowler v. United 62 F.2d postponed A for a week. (7th But see Kitt v. for this official postponement testified that the reason United 1942). people who to come from the States to were help Frankfurter said in Elkins that Justice Chandler had not arrived. One always “question been whether has expected by agents tax the American offending con search or seizure was arrived this interval. Chan- * * * any part in the in ducted in dler an FBI meeting Hong Kong assisted ar- Government; terest of the Federal ranging between * * ex whether it was conducted Philippine Secretary of Justice clusively purposes.” for state to the Attor- the Executive Assistant opin (dissenting at 1455 at ion) ney The States. General of added). (emphasis contemplated at this raids were discussed Upon meeting. Manila, his return 30. 16. See note Secretary of ordered the raids to Justice See text note 18. by proceed. The warrants issued possi- magistrates 32. See note referred to NBI,” the hands of the and “were not NBI”;

intended as directions district court found these docu posses

ments “thereafter came into the may

sion of” the NBI. support carefully the trial court’s limited

finding; support finding does not majority.33 findings

The district court made no respect ‍‌​​​​‌​‌​​‌​​​‌​‌‌​​‌‌‌‌‌​​‌​​‌‌​​‌‌​‌‌‌‌​‌​​​​‌‍all with to the two visits

American to raided majority’s course search.

version of these en incidents based tirely upon testimony of Chandler and one of Tucker, Jr., his assistants. does not Birmingham, John S. fully testimony which, reflect Ala., even that appellant. evidence, other is inconsistent with Weaver, Atty., Macon L. U. S. R. Ma- majority’s finding denigrating cey Taylor, Birming- Atty., Asst. U. S. significance of these events.34 This in ham, Ala., appellee. tervention in the fact- GODBOLD, Before GEWIN and Cir- finding process may particular be of CHOATE, Judges, cuit District significance appаr since the trial court Judge. ently majority’s misapprehen shared the irrelevant, sion that these events were PER CURIAM: might and, error, freed of that well have found from the this con appellant guilty was found duct exceeded American charges contained Counts Two and permissible limits. given a Six of an and he indictment single year day sentence of one and one very therefore, least, At recon- under both counts. Count Two plainly sideration trial court charged purchasing whiskey, required. without the immediate containers there having stamps affixed thereto evi dencing payment of all Internal Revenue imposed thereon,

taxes in violation 5205(a) (2). 26 U.S.C. Count Six § charged possessing property him with violating intended for use the Inter BLACK, Appellant, John Thomas nal Revenue laws. 5686. U.S.C. § appellant contends the Unit- America, UNITED STATES ed States District Court the North- Appellee. deny- ern District of erred in Alabama No. 25971. ing his motion new trial and giving jury. instructions to We dis- Appeals agree and We affirm. have considered Fifth Circuit. appellant’s all of contentions and find Dec. 1968. them merit. be without The evidence amply guilty the verdict of sustains the record does not errors disclose during committed the trial. Affirmed.

33. See note See notes 19 and 20.

Case Details

Case Name: Harry S. Stonehill and Robert P. Brooks v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 4, 1969

Citation: 405 F.2d 738

Docket Number: 22346

Court Abbreviation: 9th Cir.