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April 21, 1965

Laurel M. BAYLEY et al., including Grover Cooper, Defendants

The opinion of the court was delivered by: WYATT

This is a motion by defendant Grover Cooper for the suppression as evidence and for the return to him of certain papers. Fed.R.Crim.P. 41(e)

Evidence was taken at a hearing held on March 27, 1965.

 The papers were seized by employees (who testified that they were 'inspectors') of the Internal Revenue Service at the time of their execution, on October 8, 1962, of a warrant for the arrest of Cooper on a sworn complaint charging him with making (on or about March 6, 1962) false statements in a matter within the jurisdiction of the Internal Revenue Service. The false statements charged were that a.$ 9,118 tax refund was due to Percy Branker when Cooper knew that such a tax refund was not in fact due. The statute, not cited in the complaint, is 18 U.S.C. § 1001.

 There was no search warrant.

 At the hearing an inventory of the papers was received and notation made thereon of certain papers which the government consented to return and did so return at the time. These returned papers are suppressed as evidence on consent of the government.

 This is the decision of the motion directed to the remaining papers.

 The contention for Cooper is (1) that the arrest was unlawful because the complaint did not show probable cause to justify the issuance of a warrant and (2) that, even if the arrest were lawful, the search was not reasonable as incident thereto because of the nature and scope of the area searched.


 The facts as found are as follows:

 A sworn complaint of Stolzenthaler, an inspector of the Internal Revenue Service, was submitted to the Commissioner who on the basis thereof issued a warrant for the arrest of Cooper.

 At about 8:30 in the evening of October 8, 1962, four inspectors -- Stolzenthaler, Doyle, Mulroy and Taylor -- went to Cooper's home at 287 Washington Place, Englewood, New Jersey. Their purpose was to execute the warrant, which was in the possession of Stolzenthaler. It is assumed that they were not wearing uniforms.

 The home of Cooper is a detached house, all rooms on one floor. There is a front door opening into a living room, a back door opening from the Kitchen, and perhaps a side door. There are two bedrooms (one used by Cooper and his wife, the other a 'spare' or guest room), a bathroom, and a den.

 On the evening in question, Cooper and his wife were in the house and had a guest.

 Stolzenthaler and Doyle went to the front door and rang the bell without result; they then knocked on the door with increasing Loudness. Mulroy and Taylor had gone near the back door. After hearing the knocking at the front door, these two inspectors observed that the lights in the kitchen went out, the back door then opened, then the aluminum screen door, and a man appeared. The two inspectors went up the stairs, addressed the man and learned that he was Cooper. They told him that they were Treasury inspectors, that a warrant for his arrest had been issued, and that the warrant was in the hands of an inspector then at the front door. They started through the kitchen toward the front of the house. Meanwhile the two inspectors at the front door had finally been admitted and thus met Cooper in the living room. Stolzenthaler identified himself to Cooper, showed his badge and said that he had a warrant for Cooper's arrest. It was then about ten or fifteen minutes after the officers first came up to the outside of the house.

 Cooper asked the officers to come with him to his bedroom, entry to which was by a door from the living room; he explained that he did not want his wife (who, he said, was not well) to be upset and that they had a guest or guests. Doyle remained in the kitchen with Mrs. Cooper. The other inspectors went with Cooper to the bedroom.

 In the bedroom, Stolzenthaler gave Cooper the warrant and the complaint and, after Cooper had read these, Stolzenthaler told him that he was under arrest, to sit down on the bed, to take it easy, etc. Stolzenthaler then told Taylor and Mulroy to search the bedroom. They did so, searching all chests of drawers in the room and two closets with clothes, also a metal strong box. As a result of the search, the inspectors seized a brief case, notebooks, at least one address book, and a number of papers, including tax returns, W-2 tax forms, other Internal Revenue Service forms, business cards, slips of paper with names and telephone numbers, etc. They took nothing except from the bedroom or its closets. The search of the bedroom lasted about an hour and a quarter or an hour and a half.

 When the officers first began to search, Cooper stood up or jumped up and objected but then sat back down. Some ten minutes or so later and at a time when Stolzenthaler had left the bedroom, Cooper objected to the searching of an end table, whereupon Taylor put handcuffs on him. Before leaving the house and at Cooper's request, the handcuffs were removed.

 After searching the bedroom the inspectors went with Cooper to his garage where they searched his automobile but took nothing. They then left the premises, with Cooper.


 Because the search without a warrant is in this instance sought to be justified as incident to a lawful arrest, the first issue is whether the arrest warrant was valid and thus the arrest thereunder lawful.

 The arrest warrant is valid if the complaint shows 'probable cause to believe that an offense has been committed and that the defendant has committed it'. Fed.R.Crim.P. 4(a)

 The complaint here contains nothing which even remotely shows probable cause. There are two paragraphs in the body of the complaint. The first states in one sentence, in the language of the statute or of an indictment, the conclusion that three defendants, including Cooper, 'did unlawfully * * * make false * * * statements * * * to the effect than an income tax refund in the amount of $ 9,118.00 was due and owing to Percy Branker * * * whereas in truth * * * said income tax refund was not then due and owing * * *'. No fact or circumstances is set forth to enable the Commissioner to determine whether probable cause existed to believe that this conclusion is true. The complaint is plainly inadequate.

 The second paragraph merely states that the conclusion in the first paragraph is based on 'investigations' of Stolzenthaler, 'including * * * a statement signed by the defendant Ethel Ivy Neely'. It is not claimed by the government that the Neely statement (which was sworn to) was submitted to the Commissioner, and the complaint indicates that it was not so submitted. If the facts contained in the Neely statement had been set out in the complaint, then failure to submit the Neely statement might not be significant. But mere reference to the Neely statement does not inform the Commissioner of its contents, and thus adds nothing to the complaint.

 It may be noted in passing that even if the Neely statement were incorporated in the complaint, the latter would not be made sufficient because the Neely statement deals with a specific Branker transaction different from that contained in the complaint. The Neely statement gives facts as to a Branker tax return calling 'for a refund of $ 9,236.15' (evidently the return made the subject of count 49 of the indictment returned October 8, 1964). The complaint, however, charges an offense involving a Branker tax refund 'in the amount of $ 9,118.00' (evidently the refund made the subject of count 48 of the indictment).

 It seems plain that this complaint is 'purely conclusory', an expression used by Mr. Justice Goldberg in United States v. Ventresca, 85 S. Ct. 741, 746 (1965).

 The arrest warrant, having been issued on an insufficient complaint, is invalid. The arrest of Cooper cannot be shown by such a warrant to have been lawful.


 The arrest of Cooper may, however, be lawful as one made without a warrant. An arrest under an invalid warrant will nevertheless be lawful if the arrest might ...

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