UNITED STATES v. CACERES
No. 76-1309
Supreme Court of the United States
Argued January 8, 9, 1979—Decided April 2, 1979
440 U.S. 741
Kenneth S. Geller argued the cause for the United States. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, and Jerome M. Feit.
MR. JUSTICE STEVENS delivered the opinion of the Court.
The question we granted certiorari to decide is whether evidence obtained in violation of Internal Revenue Service (IRS) regulations may be admitted at the criminal trial of a taxpayer accused of bribing an IRS agent. 436 U. S. 943 (1978).
Unbeknown to respondent, three of his face-to-face conversations with IRS Agent Yee were monitored by means of a radio transmitter concealed on Yee‘s person. Respondent moved to suppress tape recordings of the three conversations on the ground that the authorizations required by IRS regulations had not been secured. The District Court granted the motion. The Court of Appeals for the Ninth Circuit reversed as to the third tape; it concluded that adequate authorization had been obtained.1 As to the first two tapes, however, the Court of Appeals agreed with the District Court both that the IRS regulations had not been followed and that exclusion of the recordings was therefore required. It is the latter conclusion that is at issue here.
The Government argues that exclusion of probative evidence in a criminal trial is an inappropriate sanction for violation of an executive department‘s regulations. In this case, moreover, it argues that suppression is especially inappropriate because the violation of the regulation was neither deliberate nor prejudicial, and did not affect any constitu-
I
Neither the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the conversants.2 Such “consensual electronic surveillance” between taxpayers and IRS agents is, however, prohibited by IRS regulations unless appropriate prior authorization is obtained.3
The IRS Manual sets forth in detail the procedures to be followed in obtaining such approvals.4 For all types of re-
Approval by as many as three different levels of authority may be required, depending on the kind of surveillance that is contemplated and the circumstances of the request. Telephone conversations may be monitored with the approval of an Assistant Regional Inspector of the Internal Security Division. Such advance approval may be requested and given verbally, although the authorization must subsequently be
II
On March 14, 1974, Agent Yee met with respondent and his wife in connection with an audit of their 1971 income tax returns. After Mrs. Caceres left the meeting, respondent offered Yee a “personal settlement” of $500 in exchange for a favorable resolution of the audit. When he returned to the IRS office, Yee reported the offer to his superiors and prepared an affidavit describing it.5
The record reflects no further discussion of the offer until January 1975. It does indicate, however, that one telephone conversation between Yee and respondent, on March 21, 1974, was recorded with authorization,6 and that authority was also obtained to monitor face-to-face conversations with respondent from time to time during the period between March and September 1974.7 Yee continued to work on the
On January 27, 1975, Yee had a meeting with respondent that was not recorded. According to Yee‘s affidavit,9 the meeting proceeded in two stages. First, he discussed his calculations with respondent, Mrs. Caceres, and their accountant. When respondent and his wife asked for an additional week to check their records, Yee told them it would be necessary to sign an extension because the statute of limitations would otherwise expire soon. Respondent stated that he would have to consult his attorney before signing any extension, and would call Yee with his decision later that day.
Yee then left the office to return to his car. He was followed by respondent, who revived the subject of a “personal settlement.” This time, respondent indicated that he had $500 that he would give Yee immediately, with an additional $500 to be paid when the matter was finally settled. Yee refused the offer, but at respondent‘s insistence, eventually stated that he might consider it.
In subsequent conversations initiated by Agent Yee, all of which were monitored,10 respondent indicated that he was not prepared for another meeting with Yee. Finally, in a conversation on January 30 at 5:15 p. m., respondent agreed to a meeting the following day at 2 p. m. At 8:15 a. m. on the
At the meeting on the 31st, respondent gave Yee $500 and promised to give him an additional $500 when he received a notice from IRS showing his deficiency at an amount upon which he and Yee had agreed. As in all his future meetings with respondent, Yee wore a concealed radio transmitter which allowed other agents to monitor and record their conversation.
Yee next called respondent on February 5 and arranged a meeting for the next day to review the audit agreement. Because the Department of Justice had not yet acted on, or perhaps even received, the request for a 30-day authorization, the Regional Inspector again requested and obtained emergency approval to monitor the meeting with respondent. At the February 6 meeting, respondent renewed his promise to pay an additional $500 in connection with the 1971 return, and also offered Yee another $2,000 for help in settling his 1973 and 1974 returns.
On February 11, a Deputy Assistant Attorney General approved the request for authority to monitor Yee‘s conversations with respondent for 30 days. The approval was received in time to cover a meeting held that day at which Yee was paid the additional $500. Because the 30-day period did not commence until February 11, however, no approval from the Department of Justice was ever obtained for the earlier monitorings of January 31 and February 6.
The District Court and the Court of Appeals both held that the two earlier meetings had not been monitored in accordance with IRS regulations, since Justice Department approval had
The Government does not challenge that conclusion. We are therefore presented with the question whether the tape recordings, and the testimony of the agents who monitored the January 31 and February 6 conversations, should be excluded because of the violation of the IRS regulations.
III
A court‘s duty to enforce an agency regulation is most evident when compliance with the regulation is mandated by the Constitution or federal law. In Bridges v. Wixon, 326 U. S. 135, 152-153, for example, this Court held invalid a deportation ordered on the basis of statements which did not comply with the Immigration Service‘s rules requiring signatures and oaths, finding that the rules were designed “to afford [the alien] due process of law” by providing “safeguards against essentially unfair procedures.”12
In this case, however, unlike Bridges v. Wixon, the agency was not required by the Constitution or by statute to adopt any particular procedures or rules before engaging in con-
Nor does the Constitution protect the privacy of individuals in respondent‘s position. In Lopez v. United States, 373 U. S. 427, 439, we held that the Fourth Amendment provided no protection to an individual against the recording of his statements by the IRS agent to whom he was speaking. In doing so, we repudiated any suggestion that the defendant had a “constitutional right to rely on possible flaws in the agent‘s memory, or to challenge the agent‘s credibility without being beset by corroborating evidence that is not susceptible of impeachment,” concluding instead that “the risk that petitioner took in offering a bribe to [the IRS agent] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.” The same analysis was applied in United States v. White, 401 U. S. 745, to consensual monitoring and recording by means of a transmitter concealed on an informant‘s person, even though the defendant did not know that he was speaking with a Government agent:
“Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter‘s Fourth Amendment rights. Hoffa v. United States, 385 U. S., at 300-303. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person,
Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, [343 U. S. 747]. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant‘s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.” United States v. White, supra, at 751 (opinion of WHITE, J.).13
Our decisions in Lopez and White demonstrate that the IRS was not required by the Constitution to adopt these regulations.14 It is equally clear that the violations of agency regu-
It is true, of course, that respondent‘s conversations were monitored without the approval of the Department of Justice, whereas the conversations of others in a similar position would, assuming the IRS generally follows its regulations, be recorded only with Justice Department approval. But this difference does not even arguably amount to a denial of equal protection. No claim is, or reasonably could be, made that if the IRS had more promptly addressed this request to the Department of Justice, it would have been denied. As a result, any inconsistency of which respondent might complain is purely one of form, with no discernible effect in this case on the action taken by the agency and its treatment of respondent.
Moreover, the failure to secure Justice Department authorization, while conceded here to be a violation of the IRS regulations, was attributable to the fact that the IRS officials responsible for administration of the relevant regulations, both in San Francisco and Washington, construed the situation as an emergency within the meaning of those regulations. Their construction of their own regulations, even if erroneous, was not obviously so. That kind of error by an executive agency in interpreting its own regulations surely does not raise any constitutional questions.
Nor is this a case in which the Due Process Clause is implicated because an individual has reasonably relied on agency
Finally, the Administrative Procedure Act16 provides no grounds for judicial enforcement of the regulation violated in this case. The APA authorizes judicial review and invalidation of agency action that is arbitrary, capricious, an abuse of discretion, or not in accordance with law, as well as action
But this is not an APA case, and the remedy sought is not invalidation of the agency action. Rather, we are dealing with a criminal prosecution in which respondent seeks judicial enforcement of the agency regulations by means of the exclusionary rule. That rule has primarily rested on the judgment that the importance of deterring police conduct that may invade the constitutional rights of individuals throughout the community outweighs the importance of securing the conviction of the specific defendant on trial.20 In view of our
IV
Respondent argues that the regulations concerning electronic eavesdropping, even though not required by the Constitution or by statute, are of such importance in safeguarding the privacy of the citizenry that a rigid exclusionary rule should be applied to all evidence obtained in violation of any of their provisions. We do not doubt the importance of these rules. Nevertheless, without pausing to evaluate the Government‘s challenge to our power to do so,22 we decline to adopt any rigid rule requiring federal courts to exclude any evidence obtained as a result of a violation of these rules.
Regulations governing the conduct of criminal investigations are generally considered desirable, and may well provide more valuable protection to the public at large than the deterrence flowing from the occasional exclusion of items of evidence in criminal trials.23 Although we do not suggest that a suppression order in this case would cause the IRS to abandon or modify its electronic surveillance regulations, we cannot ignore the possibility that a rigid application of an exclusionary rule to every regulatory violation could have a serious
Nor can we accept respondent‘s further argument that even without a rigid rule of exclusion, his is a case in which evidence secured in violation of the agency regulation should be excluded on the basis of a more limited, individualized approach. Quite the contrary, this case exemplifies those situations in which evidence would not be excluded if a case-by-case approach were applied. The two conversations at issue here were recorded with the approval of the IRS officials in San Francisco and Washington. In an emergency situa-
The judgment of the Court of Appeals is
Reversed.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.
The Court today holds that evidence obtained in patent violation of agency procedures is admissible in a criminal prosecution. In so ruling, the majority determines both that the Internal Revenue Service‘s failure to comply with its own mandatory regulations implicates no due process interest, and that the exclusionary rule is an inappropriate sanction for such noncompliance. Because I can subscribe to neither proposition, and because the Court‘s decision must inevitably erode respect for law among those charged with its administration, I respectfully dissent.
I
In a long line of cases beginning with Bridges v. Wixon, 326 U. S. 135, 152-153 (1945), this Court has held that “one under investigation . . . is legally entitled to insist upon the observance of rules” promulgated by an executive or legislative body for his protection. See United States v. Nixon, 418 U. S. 683, 695-696 (1974); Morton v. Ruiz, 415 U. S. 199, 235 (1974); Yellin v. United States, 374 U. S. 109 (1963); Vitarelli v. Seaton, 359 U. S. 535 (1959); Service v. Dulles, 354 U. S. 363 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954). Underlying these decisions is a judgment, central to our concept of due process, that government officials no less than private citizens are bound by rules of law.1 Where individual interests are implicated, the Due Process Clause requires that an executive agency adhere to the standards by which it professes its action to be judged. See Vitarelli v. Seaton, supra, at 547 (Frankfurter, J., concurring in part and dissenting in part).
Despite these well-established precedents and the IRS‘s conceded failure to abide by mandatory investigative regulations, the Court finds no due process violation on the facts of this case. In reaching its conclusion, the majority relies on the absence of constitutional or statutory underpinnings for
This Court has consistently demanded governmental compliance with regulations designed to safeguard individual interests even when the rules were not mandated by the Constitution or federal statute. In United States ex rel. Accardi v. Shaughnessy, supra, the Court granted a writ of habeas corpus where the Attorney General had disregarded applicable procedures for the Board of Immigration Appeals’ suspension of deportation orders. Although the Attorney General had final power to deport the petitioner and had no statutory or constitutional obligation to provide for intermediate action by the Board, this Court held that while suspension procedures were in effect, “the Attorney General denies himself the right to sidestep the Board or dictate its decision.” 347 U. S., at 267. On similar reasoning, the Court in Service v. Dulles vacated a Foreign Service officer‘s national security discharge. While acknowledging that the Secretary of State was not obligated to adopt “rigorous substantive and procedural safeguards,” the Court nonetheless held that “having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them.” 354 U. S., at 388. Similarly, in Vitarelli v. Seaton we demanded adherence to Department of the Interior employee-discharge procedures that were “generous beyond the requirements that bind [the] agency.” 359 U. S., at 547 (Frankfurter, J., concurring in part and dissenting in part). And most recently, in Morton v. Ruiz, we declined to permit the Bureau of Indian Affairs to depart from internal rules for establishing assistance-eligibility requirements although the procedures were “more rigorous than otherwise would be required.” 415 U. S., at 235. See also United States v. Nixon, supra; Yellin v. United States, supra; Bridges v. Wixon, 326 U. S. 135 (1945).2 Thus, where internal regulations do not merely facilitate internal agency housekeeping, cf. American Farm Lines v. Black Ball Freight Service, 397 U. S. 532, 538 (1970),3 but rather afford significant procedural protections, we have insisted on compliance.
That the IRS regulations at issue here extend such protections is beyond dispute. As this Court recognized in Berger v. New York, 388 U. S. 41, 63 (1967), “[f]ew threats to liberty exist which are greater than that posed by the use of eavesdropping devices.” An agency‘s self-imposed constraints on the use of these devices, no less than limitations mandated by statute or by the Fourth Amendment, operate to preserve a “measure of privacy and a sense of personal security” for individuals potentially subject to surveillance. See United States v. White, 401 U. S. 745, 790 (1971) (Harlan, J., dissenting).
Moreover, the history of the IRS authorization requirements clearly establishes that they were intended to protect privacy interests. The regulations were an outgrowth of investigations in 1965 and 1966 by a Subcommittee of the Senate Judiciary Committee concerning surveillance techniques of federal agencies. Testimony at Subcommittee hearings revealed that IRS agents had made extensive unauthorized use of a wide variety of eavesdropping techniques.
In response to that congressional investigation, the IRS convened a special Board of Inquiry to review agency surveillance practices and to recommend new procedures. Both the scope of the new regulations and the IRS Commissioner‘s representations to the Senate Subcommittee demonstrate that the agency was concerned not only with preventing “violation[s] of a person‘s constitutional or statutory rights,” but also with “carefully control[ling]” certain investigatory techniques which, “although legal, nevertheless tend to be offensive to the public conscience.” Id., at 1122 (testimony of Commissioner Cohen). The Commissioner further assured the Subcommittee that detailed regulations adopted by the agency in 1967 would guarantee such control. Id., at 1122-1126; CCH [1967] Stand. Fed. Tax Rep. ¶ 6711, p. 71,756. Those regulations, recodified without substantial modification, are
Against this historical backdrop, it is inarguable that these IRS regulations affect substantial individual interests. Indeed the Court does not suggest otherwise. Rather, it places weight on respondent‘s failure to establish prejudice from agency illegality. Because Caceres cannot demonstrate that he “reasonably relied” on the regulations, ante, at 752, or that the failure to obtain proper authorization had any “discernible effect” on the IRS‘s decision to monitor his conversations with Agent Yee, ibid., the Court concludes that the agency‘s action implicates no due process interest. Such an approach is fundamentally misconceived. By assessing respondent‘s claim in terms of prejudice, the Court disregards not only its prior holdings, but also the principles of governmental regularity on which they rest.
To make subjective reliance controlling in due process analysis deflects inquiry from the relevant constitutional issue, the legitimacy of government conduct. If an individual is entitled only to the process that he subjectively believes is due, an agency could disregard its investigative rules with impunity provided it did so with consistency. For no person could “reasonably rely,” ibid., on rules that were generally ignored. And to the extent that the majority views reliance as critical in an investigative context, it effectively reduces mandatory regulations to hortatory policies. Presumably the only persons with occasion to discover breaches of investigative rules will be those facing criminal prosecution. Such individuals will rarely, if ever, be able to establish that they planned their conduct with internal agency regulations in view.5
Moreover, the Court‘s focus on subjective reliance is inconsistent with our prior decisions enforcing due process guarantees. In Bridges v. Wixon, 326 U. S. 135 (1945), we vacated a deportation order because the Immigration and Naturalization Service had failed to observe regulations requiring that witness statements be made under oath, even though the petitioner‘s statements were not involved and he had not invoked the regulations at his deportation hearing. So too, in Yellin v. United States, 374 U. S. 109 (1963), this Court overturned the defendant‘s contempt conviction for refusal to testify before Congress where the House Committee on Un-American Activities had ignored rules requiring it to consider formally the injuries to a witness’ reputation that might attend public hearings. Yet as the dissent in Yellin pointed out, the defendant had predicated his refusal to testify on First Amendment grounds, not on the public nature of the proceedings, and had in “no way indicated that an executive session would have made any difference in his willingness to answer questions.” Id., at 141 (WHITE, J., dissenting).
Nor has this Court required, as it does today, that procedural irregularity affect the outcome of the governmental action at issue. For example, there was no suggestion in Yellin that, had the Committee formally considered the injury to the defendant‘s reputation, it would have convened an executive session. Indeed, the Committee Chairman had testified that this was precisely the kind of case where a public hearing was appropriate. Id., at 117-118, n. 6. Nonetheless, the Court, even as it expressed doubt that procedural com-
Similarly, the petitioner in Vitarelli v. Seaton, 359 U. S. 535 (1959), was in no meaningful sense prejudiced by the Department of the Interior‘s departure from regulations governing employee discharges for national security reasons. After the petitioner filed suit, he received a revised notice of dismissal which complied with all applicable regulations. Despite the petitioner‘s inability to demonstrate that adherence to agency regulations would have affected the decision to discharge him, this Court ordered reinstatement.
Implicit in these decisions,7 and in the Due Process Clause itself, is the premise that regulations bind with equal force whether or not they are outcome determinative. As its very terms make manifest, the Due Process Clause is first and foremost a guarantor of process. It embodies a commitment to procedural regularity independent of result. To focus on the conduct of individual defendants rather than on that of the government necessarily qualifies this commitment. If prejudice becomes critical in measuring due process obligations, individual officials may simply dispense with whatever procedures are unlikely to prove dispositive in a given case. Thus, the majority‘s analysis invites the very kind of capricious and unfettered decisionmaking that the Due Process Clause in general and these regulations in particular were designed to prevent.
II
Having found a due process violation, I would require that the fruits of that illegality be suppressed in respondent‘s criminal prosecution. Mapp v. Ohio, 367 U. S. 643 (1961). Accordingly, under my analysis, it would be unnecessary to consider the scope of our supervisory powers, discussed in Part IV of the Court‘s opinion. Because, however, the Court addresses that issue, I must register my profound disagreement with both its reasoning and ultimate conclusion.
In determining that the exclusionary rule is an unwarranted sanction for the agency misconduct here, the Court attaches great significance to the agents’ ostensible “good faith” in construing their own regulations to permit “emergency” surveillance of respondent in January and February 1975. Ante, at 757, 756. The record does not admit of such a charitable characterization. IRS Agent Yee alleged that respondent first attempted to bribe him in March 1974. The IRS recorded a conversation between Caceres and Yee that same month. No further contact with Caceres concerning the bribe occurred until January 1975, and no reasons have been offered for Agent Yee‘s failure to initiate surveillance during that 10-month hiatus. Nor does the record reflect any justification for the agency‘s failure to obtain approval for monitoring between the January 27 and January 31 meetings, to schedule meetings so as to permit timely authorization requests, or to process the January 31 authorization request expeditiously. In positing that the agents had a colorable basis for believing that the January 31 and February 6 meetings
Moreover, even assuming the good faith which the agency has failed to demonstrate, that consideration should not figure in our present analysis. Restricting application of the exclusionary rule to instances of bad faith would invite law enforcement officials to gamble that courts would grant absolution for all but the most egregious conduct. Since judges do not lightly cast aspersions on the motives of government officials, the suppression doctrine would be relegated to those rare circumstances where a litigant can prove insolent or calculated indifference to agency regulations. As we have noted in the context of Fourth Amendment violations, “[i]f subjective good faith alone were the test, . . . the people would be ‘secure . . .’ only in the discretion of the police.” Beck v. Ohio, 379 U. S. 89, 97 (1964). Just as intent has not been determinative in Fourth Amendment cases, see, e. g., Mincey v. Arizona, 437 U. S. 385 (1978); United States v. Brignoni-Ponce, 422 U. S. 873 (1975); Almeida-Sanchez v. United States, 413 U. S. 266 (1973), it should not be material here.
The Court next suggests that suppression is unnecessary in this case because “the Executive itself has provided for
Finally, the Court declines to order suppression because “a rigid application of an exclusionary rule to every regulatory violation could have a serious deterrent impact on the formulation of additional standards to govern prosecutorial and police procedures.” Ante, at 755-756. No support is offered for that speculation. In fact, all available evidence is to the contrary. Since 1967, the IRS has retained regulations requiring agents to give Miranda warnings in noncustodial settings despite Court of Appeals decisions suppressing statements taken in violation of those rules. United States v. Sourapas, 515 F. 2d 295, 298 (CA9 1975); United States v. Leahey, 434 F. 2d 7 (CA1 1970); United States v. Heffner, 420 F. 2d 809 (CA4 1969). Significantly, the Court points to no instance in which an agency has withdrawn the procedural protections made meaningful by decisions such as Bridges v. Wixon, 326 U. S. 135 (1945), United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954), Service v. Dulles, 354 U. S. 363 (1957), and Vitarelli v. Seaton, 359 U. S. 535 (1959).
Even if the majority‘s concern about inhibiting agency self-regulation were more solidly grounded, it could not justify the result in this case. Under today‘s decision, regulations
In my judgment, the Court has utterly failed to demonstrate why the exclusionary rule is inappropriate under the circumstances presented here. Equally disturbing is the majority‘s refusal even to acknowledge countervailing considerations. Quite apart from specific deterrence, there are significant values served by a rule that excludes evidence secured by lawless enforcement of the law. Denying an agency the fruits of noncompliance gives credibility to the due
I would affirm the judgment of the court below.
Notes
“(1) The monitoring of non-telephone conversations with the consent of one party requires the advance authorization of the Attorney General or any designated Assistant Attorney General. Requests for such authority may be signed by the Director, Internal Security Division, or, in his/her absence, the Acting Director. This authority cannot be redelegated. These same officials may authorize temporary emergency monitoring when exigent circumstances preclude requesting the authorization of the Attorney General in advance. If the Director, Internal Security Division, cannot be reached, the Assistant Commissioner (Inspection) may grant emergency approval. This authority cannot be redelegated.
“(2) Written approval of the Attorney General must be requested 48 hours prior to the use of mechanical, electronic or other devices to overhear, transmit or record a non-telephone private conversation with the permission of one party to the conversation. . . . Any requests being telefaxed into the National Office should be submitted four days prior to the anticipated equipment use. . . .
“(3) [A request] must be signed and submitted by the Regional Inspector or Chief, Investigations Branch, to the Director, Internal Security Division. Such requests will contain [reason for such proposed use; type of equipment to be used; names of persons involved; proposed location of equipment; duration of proposed use (limited to 30 days from proposed beginning date); and manner or method of installation] . . . .
“(6) When emergency situations occur, the Director or Acting Director, Internal Security Division, or the Assistant Commissioner (Inspection) will be contacted to grant emergency approval to monitor. This emergency approval authority cannot be redelegated. . . . Emergency authorization pursuant to this exception will not be given where the requesting official has in excess of 48 hours to obtain written advance approval from the Attorney General.
“(7) If, at the time the emergency approval request is submitted, it is desired that approval for use of electronic equipment be given for an extended period, this should be indicated on the [appropriate form]. The Director, in addition to reporting his authorization for emergency use to the Attorney General, will also request approval for the Use of Electronic Equipment for the duration of that period specified by the requestor.”
As summarized by Senator Morse: “The record reveals that illegal wiretapping by the Internal Revenue Service is not an occasional action of an overzealous agent, but is the logical and reasonable consequence of a well-defined program. . . .” Hearings on S. Res. 928 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 29 (1967).Since that investigation, the agency‘s performance has remained less than exemplary. In 1974, an internal audit of electronic surveillance within the IRS Intelligence Division revealed that 18 agents had engaged in 35 to 40 “instances” of improper monitoring within the previous year, with an “instance” defined to include as many as 15 different phone calls. Oversight Hearings into the Operations of the IRS before a Subcommittee of the House Committee on Government Operations, 94th Cong., 1st Sess., 426-431, 450 (1975) (hereinafter Oversight Hearings). None of these employees were dismissed or demoted. In only one case did violations even actuate suspension. There, an employee who monitored his home telephone for “personal reasons completely unrelated to his official duties” was suspended for five days. Id., at 451; Reply Brief for United States 17, and n. 9. Four other employees received written reprimands. Eight received oral admonitions, three of which were confirmed in writing and none of which became part of the agents’ personnel folders. Oversight Hearings 451, 453. The Service took no action in five cases. Id., at 451.
Such nominal sanctions hardly justify the Court‘s faith in agency self-restraint, particularly given the Government‘s failure to identify a single instance of internal disciplinary action by the IRS since 1974. See Reply Brief for United States 16-17.
“Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer‘s unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.” 401 U. S., at 753.
In Miller, the Court suppressed evidence obtained after District of Columbia police forcibly entered an apartment without announcing their authority and purpose as required by a federal statute made applicable in the District by a ruling.Even as a matter of administrative law, however, it seems clear that agencies are not required, at the risk of invalidation of their action, to follow all of their rules, even those properly classified as “internal.” In American Farm Lines v. Black Ball Freight Service, 397 U. S. 532, 538, for example, ICC rules requiring certain information to be included in applications had not been followed. This Court rejected the argument that the agency action was therefore invalid, concluding that the Commission was “entitled to a measure of discretion in administering its own procedural rules in such a manner as it deems necessary to resolve quickly and correctly urgent transportation problems.”