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United States v. Dichiarinte

June 4, 1971


Swygert, Chief Judge, and Pell and Stevens, Circuit Judges. Stevens, Circuit Judge (dissenting).

Author: Swygert

SWYGERT, Chief Judge.

Defendant, Anthony J. Dichiarinte, appeals from his conviction of two counts of wilful tax evasion in violation of 26 U.S.C. ยง 7201. In an indictment returned April 14, 1964, the Government charged defendant with attempting to evade income taxes totaling approximately $20,000 for the years 1957 and 1958 by failing to file returns and by concealing his true income. Defendant was found guilty by a jury in October 1968 and was sentenced to consecutive terms totaling nine years and fined $10,000. We reverse.


Defendant's primary contention is that his conviction rests, in large part, on evidence derived from items seized during an unconstitutional search of his home. The district court held hearings on defendant's motions to suppress this evidence on October 30 and November 2, 1964, and on June 24, 1968. The court subsequently denied the motions and entered findings of fact, conclusions of law, and a memorandum opinion holding that the challenged items were legally seized pursuant to a valid consent search. We rule that the district court erred in denying these motions to suppress.

The facts relating to the search follow. On March 9, 1960, a warrant was issued for the arrest of the defendant on an indictment charging him with a sale of narcotics. That evening, two federal narcotic agents observed the defendant, his wife, and a friend, one Rosenthal, drive away from his home. The agents stopped defendant's car about a mile or two from his home. The agents, one of whom drew his gun, then ordered defendant and Rosenthal to get out of the car. After defendant was arrested and the two men were searched, they were taken to the agents' car. In response to the question whether he had any narcotics in his home, defendant replied, "I have never seen narcotics. You guys come over to the house and look, you are welcome to." The group then returned to defendant's home and the search was begun. A short time later, Rosenthal advised defendant that he did not have to permit the search. Defendant replied, "That is all right, I told them they could search. They are not going to find any narcotics in here."

After the search had been in progress for approximately forty-five minutes, one of the agents removed some currency exchange receipts from a drawer near the sofa on which defendant was seated. Rosenthal then stated, "Tony, they are going a little bit too far. If I were you I would stop the search. They are taking everything." According to the defendant, when he saw the agent seize the currency exchange receipts, he said, "Does that look like narcotics if that is what you want to search for?" and the agent replied, "Sorry, Pal, we are here now and this is what we are going to do." Shortly thereafter, defendant announced, "The search is over. I am calling off the search." However, the agents continued their search for about ten more minutes.

The record does not contain either the original seized documents or copies; however, we are informed by the parties in their briefs that these items included: currency exchange receipts for the purchase of money orders; insurance policies on defendant's and other persons' lives; insurance policies on cars, dwellings, and furs owned by defendant or members of his family; receipts for a loan; and a certificate of title to certain real estate. The documents were taken to the Bureau of Narcotics' offices for examination, and on March 16, 1960, they were photographed by an internal revenue agent.

As justification for the search of the defendant's home and the seizure of his papers, the Government relies on the defendant's statement that the agents could "come over to the house and look." For the purpose of our decision in this case, we may assume that this statement constituted a free and voluntary invitation to the agents;*fn1 and we may also assume that the items taken were evidence of crime and subject to seizure.*fn2 Even if we assume that defendant consented to a search, the record shows that the consent was limited to a search for narcotics. The evidence at the suppression hearings contains repeated reference to the agents' interest in narcotics; and there was no indication that they desired to look for anything other than narcotics themselves. When defendant became aware that the agents were inspecting and seizing his personal papers, he attempted to call off the search. Under these circumstances, defendant's statement that the agents could "come over to the house and look" must be taken to mean at most that they might come and conduct only such a search as would be necessary to establish whether he had any narcotics. Government agents may not obtain consent to search on the representation that they intend to look only for certain specified items and subsequently use that consent as a license to conduct a general exploratory search.

A consent search is reasonable only if kept within the bounds of the actual consent. Honig v. United States, 208 F.2d 916, 919 (8th Cir. 1953).*fn3 In the case before us the defendant's consent set the parameters of the agents' conduct at that which would reasonably be necessary to determine whether he had narcotics in his home. But the agents went beyond what was necessary to determine whether defendant had hidden narcotics among his personal papers; they read through those papers to determine whether they gave any hint that defendant was engaged in criminal activity. This was a greater intrusion into defendant's privacy than he had authorized and the fourth amendment requires that any evidence resulting from this invasion be suppressed.*fn4

Our holding that the search was unreasonable because it went beyond the scope of defendant's consent would be the same if the agents had conducted the search under a search warrant which authorized the seizure of narcotics. Such a warrant would not have given the agents the power to read defendant's personal papers. Cf. Woo Lai Chun v. United States, 274 F.2d 708 (9th Cir. 1960). The concurring opinion of Mr. Justice Stewart in Stanley v. Georgia, 394 U.S. 557, 569, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), is instructive on this point. In that case, state and federal officers gained admission to Stanley's house under a search warrant authorizing the seizure of equipment and records used in an illegal wagering business. In the course of their search, the officers came upon some moving picture film which they later viewed with Stanley's projector and seized because they considered it obscene. Justice Stewart conceded that the broad authorization of the warrant in that case empowered the agents to search through the desk drawer where the film was found. But the film was not "contraband, criminal activity, or criminal evidence in plain view," 394 U.S. at 571, 89 S. Ct. at 1251; and since it was not within the items enumerated in the officers' warrant, they could not put up a projector and examine the film in the hope that it would give some evidence of previously unsuspected criminal behavior. As Justice Stewart said, 394 U.S. at 572, 89 S. Ct. at 1251:

To condone what happened here is to invite a government official to use a seemingly precise and legal warrant only as a ticket to get into a man's home, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant.

Similarly, the officers' use of defendant's limited consent as a ticket to get inside his home and conduct a general search cannot be allowed. The Government has failed to sustain the burden of showing that it acted within the scope of defendant's consent.

Of course, if the government agents acting within the parameters of defendant's consent had come upon contraband, fruits or instrumentalities of crime, or clear evidence of criminal behavior which was lying in plain view, they could have seized those items. Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). But even though the record is somewhat unclear, it appears that at least some of the items seized and later used in the Government's tax evasion investigation were not in plain view but had to be opened and read. Even assuming that these items were evidence of crime and thus subject to seizure, ...

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