Memorandum — Truitt v. Lenahan

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1231

JERRY A. TRUITT AND JAMES K. MONTGOMERY, JR.,

PETITIONERS

Vv.

WILLIAM M. LENAHAN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

The principal contention presented by the petition is

that a search and seizure of petitioners’ records by agents

of the Internal Revenue Service pursuant to a search

warrant violated their Fifth Amendment rights. In this

suit brought by petitioners against the agents seeking

suppression of any evidence obtained from the records

and damages for violation of their constitutional rights,

the district court granted summary judgment to the

agents of the Internal Revenue Service (Pet. App. B A7-

Al0) and the court of appeals affirmed (Pet. App. A

A1l-A6).

The pertinent facts are as follows: Petitioners Truitt and

Montgomery are veterinarians. Between September 27,

1968, and March 26, 1973, petitioners “-practiced in

partnership under the name “Animal Hospital” in

(1)

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Memphis, Tennessee.! On September 25, 1972, Martha

Jane Greenwood, a former employee if petitioners, called

the Internal Revenue Service and stated that petitioners

were not reporting all of their income. This information was

received by the Intelligence Division of the Internal

Revenue Service (R. 35-36, 39).2 On May 3, 1973, Special

Agent Childress of the Intelligence Division was assigned

the task of evaluating several items of information,

including that supplied by Greenwood, pertaining to

petitioners’ tax liability. After concluding that the

information did not warrant a criminal investigation by the

Intelligence Division, Special Agent Childress referred the

matter to the Audit Division (R. 40-41). It is undisputed

that the Intelligence Division did not control or direct the

activities of the revenue agents involved until the case was

- later returned to the Intelligence Division (Pet. App. A A5-

A6, n. 3).

At the commencement of the audit one year later,

petitioner Truitt referred Revenue Agent Plunket to Don

Holmes, Truitt’s accountant. After examining the

partnership records for 1971, the revenue agent determined

that there was a substantial understatement of income (R.

49-50). On October 11, 1973, Margorie Morris, an employee

of petitioner Truitt, approached Revenue Agent Plunket

and told him that not all receipts during the year 1971 were

deposited in the partnership bank account (R. 51-55).

Petitioner Truitt was advised of the understatement of

income discovered, and Revenue Agent Plunket asked to

'On March 26, 1973, petitioner Truitt purchased all of his partner's

interest in the practice, including all of the partnership records (Pet.

4. n. 1). Since March 26, 1973, petitioner Truitt has practiced

veterinary medicine as a sole proprietor.

™“R.” refers to the record appendix in the court of appeals.

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copy the records so that work could be done in Internal

Revenue Service offices (R. 50, 51, 55). Truitt was informed

that he did not have to allow copying of the records (R. 55).

On November 5, 1973, petitioners’ accountant Holmes

advised Agent Plunket that the records would not be made

available for copying. This refusal to turn over the records

was repeated by G. Patrick Arnoult, an attorney who was

representing petitioners (R. 55-56).

Revenue Agent Plunket thereupon referred the cases of

both petitioners to the Intelligence Division as potential

fraud cases. Special Agents Cade and Lenahan then

proceeded to interview the original informant, Martha Jane

Greenwood, and to take a sworn statement from her (R. 60).

That statement reaffirmed her original charge that

petitioners were not recording and reporting a portion of

their cash income (R. 68-70). She also said that both

petitioners knew what was being done (R. 72) and added

that petitioner Truitt had urged her to refuse to give any

information and to deny the knowledge she had (R. 73-74).

The agents thereafter decided to obtain a search warrant

to seize petitioners’ records. They presented affidavits to a

United States Magistrate, setting forth the facts that

established probable cause to believe that petitioners had

willfully failed to report their true incomes for the years

in question. The magistrate issued a warrant to the agents

to search for and seize records pertaining to petitioners’

1971 and 1972 tax liabilities (R. 16-18). The search was

carried out on April 12, 1974, and various financial records

of petitioners were seized (Pet. App. B A7).

1. Petitioners first contend (Pet. 8-9) that the seizure of

their books and records violated their Fifth Amendment

privilege against compulsory self-incrimination. For the

reasons we have set forth in our brief amicus curiae in

Andresen v. Maryland, No. 74-1646, argued February 25,

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1976.' we believe that the court of appeals correctly held that

a person's privilege under the Fifth Amendment against

being compelled to be a witness against himself cannot be

invoked to bar the admission into evidence of business

records seized by the Internal Revenue Service in

compliance with the Fourth Amendment. See also

Shaffer v. Wilson, 523 F.2d 175 (C.A. 10), petition for a

writ of certiorari pending. No. 75-601.

As the Court recently observed in Fisher v. United

States, No. 74-18, decided April 21, 1976, slip op. 7 (foot-

note omitted), it “has never on any ground, personal

privacy included. apphed the Fifth Amendment to prevent

the otherwise proper acquisition or use of evidence

which, in the Court's view. did not involve compelled

testimonial self-incrimination of some sort.” The execu-

tion of a search wartant does not involve compulsory

testimonial self-incrimination. However, since the issue

raised here is now before the Court in Andresen, the

petition should be held pending the decision in that case.

2. Petitioners’ remaining claims do not warrant further

review. They also contend (Pet. 11) that the search was

unreasonable under the Fourth Amendment because

the government had no reason to believe that the records

would be concealed or destroyed. But as both courts

below concluded, if the probable cause and particularity

requirements of the Fourth Amendment are otherwise

met, the government need not establish that records

constituting evidence of a crime are about to be hidden

or destroyed before it may search for and seize them

‘We are serving a copy of our Andresen brief on petitioners

together with this memorandum.

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pursuant to a warrant (Pet. App. A A4; Pet. App. B

Alo)

3. Finally, petitioners argue (Pet. 13-15) that the Internal

Revenue agents’ failure to warn them of their constitutional

rights was a violation of the Internal Revenue Service's own

announced rules which require its special agents to warn

taxpayers of their constitutional rights prior to the initial

interview in a criminal investigation. That policy does not

extend to the interviews conducted by revenue agents in

connection with a civil audit. In apparent acknowledge-

ment that the warnings are only required to be given by

special agents in their interviews of taxpayers under

criminal investigation, petitioners claim (Pet. 15) that “the

IRS deliberately assigned a Revenue Agent to conduct

what it most certainly knew to be a criminal investigation”

so that the warnings would not be required. There is, how-

ever, no evidence that the assignment of this case to a

revenue agent was made in anything other than good

faith (Pet. App. A AS5-A6, n. 3). The courts of appeals

that have considered the question all agree that the good

faith referral of an audit assignment to a revenue agent

who is not required to warn taxpayers of their constitu-

tional rights before interviewing them, instead of to a

special agent who is required to give such warnings, does

not deny due process. United States v. Robson, 477 F.2d 13,

17 (C.A. 9), certiorari denied, 420 U.S. 927; United States

v. McCorkle, 511 F.2d 482, 487-489 (C.A. 7) (en banc),

certiorari denied, 423 U.S. 826.

*VonderAhe v. Howland. S08 F.2d 364 (C.A. 9), upon which

petitioners rely (Pet. 7). isnot tothe contrary. There. the court indicated

that a search warrant is proper if a request for the records has been

denied. Here. the request to copy the records was denied before the war-

rant was sought. and the court of appeals held that the criteria set forth

in Vonder Ahe had been satisfied (Pet. App. A A4).

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For the reasons stated, the petition for a writ of

certiorari should be held pending the Court’s decision in

Andresen v. Maryland, supra.

Respectfully submitted.

Rospert H. Bork,

Solicitor General.

May 1976.

DOJ-1976-05

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