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UNITED STATES v. TARLOWSKI

August 22, 1969

United States of America, Plaintiff
v.
Walter Tarlowski, Defendant


Weinstein, District Judge.


The opinion of the court was delivered by: WEINSTEIN

Memorandum and Order

WEINSTEIN, District Judge:

 In this prosecution for failure to file income tax returns (26 U.S.C. ยง 7203), defendant Walter Tarlowski seeks to suppress certain statements and records obtained from him during the course of an investigation by agents of the Internal Revenue Service (IRS). For the reasons stated below, the motion is granted.

 I. Facts

 On January 4, 1965, Special Agent John Trager, accompanied by an IRS Revenue Agent, interviewed the defendant at the home-office of his accountant, Michael Coppins. This interview with the two agents lasted slightly over one-half hour, and was preceded by a separate, shorter interview with Coppins. In his interview, the defendant made several damaging admissions.

 Although the testimony of Special Agent Trager is self-contradictory on this point, it seems likely, and this Court finds, that he requested Coppins to leave the room while Tarlowski was being interrogated. This finding is buttressed by the uncontroverted facts that Coppins did leave, and that he had no other apparent reason to leave the room in which the questioning took place: his records and papers were kept in that room; he was obviously accustomed to working in that room; his client, in whom he had a natural interest, with whose difficulties he was familiar, and for whom he had arranged the interview at the request of Agent Trager, was being interviewed in that room.

 It is clear that before proceeding with the questioning, the Special Agent gave Tarlowski some of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), including the warning of the right to counsel. Yet, while he was informing the prospective defendant of his right to counsel, he was simultaneously requesting that the defendant's accountant leave during the interrogation. In effect, the investigator informed Tarlowski that he might have his attorney present, but not his accountant.

 After this meeting, there were no further contacts between the defendant and Trager until July 31, 1967. At about that time, the Special Agent was informed by Coppins, who had continued negotiations for Tarlowski, that his client had engaged another accountant, John Dolan. Wishing to secure copies of worksheets for Tarlowski's 1963 and 1964 tax returns, as well as his ledger book, Trager waited outside the defendant's home until his return in the early evening of July 31. When Tarlowski arrived, Trager was again informed that Dolan was to be the defendant's accountant, and that Tarlowski intended to meet with Dolan that evening or the next to turn over all his materials and discuss the matter. Special Agent Trager then requested that the defendant turn over his work sheets and ledger book and informed him of his rights to silence and counsel. Tarlowski gave Trager the requested materials. Although he had "almost made [his] mind up to recommend criminal prosecution," the Special Agent did not then inform Tarlowski of this possibility.

 Again, in effect, by proceeding when the defendant had expressed his desire to consult with his accountant, the Special Agent denied him the right to the assistance of anyone other than his attorney. Although Tarlowski had specifically expressed his intention to seek advice, the agent informed him of his rights in the same formalistic manner, brushed aside the defendant's attempts at an explanation, and proceeded with his inquiries, thereby conveying the impression that the right to seek advice was not available except through an attorney. This conclusion takes on added weight in view of the facts that defendant is a man of limited education, and that the Special Agent was aware of the defendant's background.

 The questions presented in this case are troublesome. Putting to one side the situation where there is statutory authorization, may a representative of the federal government, at his own behest, limit the right of an individual to demand the presence of others at an interrogation? May such a representative, contemplating a criminal prosecution, demand the presence of an individual for questioning, but, at the same time, refuse that person the right to be accompanied by another in whom he reposes trust and confidence? The answers to these questions are no; there is no authority for a federal official's so limiting freedom. This conclusion is compelled by general constitutional principles as well as by the specific command of the Fifth Amendment that no person shall be deprived of liberty without due process of law. Two elements must be considered in this context: what constitutes an infringement upon constitutionally guaranteed liberties; and what is the due process of law which will permit such an infringement?

 II. Constitutionally Protected Liberty

 Certain fundamental liberties, not expressly enumerated in the Constitution or Bill of Rights, are, nonetheless, guaranteed to the individual by the requirement of due process. See, e.g., Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 1824, 18 L. Ed. 2d 1010 (1967) (right to marry); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (right to privacy in intimate marital relationship); Aptheker v. Secretary of State, 378 U.S. 500, 84 S. Ct. 1659, 12 L. Ed. 2d 992 (1964) (right to travel); Kent v. Dulles, 357 U.S. 116, 78 S. Ct. 1113, 2 L. Ed. 2d 1204 (1958) (same); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (rights to conduct and attend private schools); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) (rights to teach and learn foreign languages). Cf. United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S. Ct. 778, 783, n.4 82 L. Ed. 1234 (1938). In order to determine the existence and extent of those rights, not expressly enumerated, that are encompassed in the term "liberty" some source of content for the term must be sought.

 The standards of interpretation of the Fifth Amendment are threefold. First, a fruitful source of inquiry may be "the common and statute law of England prior to the emigration of our ancestors, and . . . the laws of many of the states at the time of the adoption of this amendment. . . ." Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 280, 15 L. Ed. 372 (1855). Another source of interpretation is the entire Bill of Rights (and, too, provisions in the body of the Constitution enunciating basic protections of individuals). Twining v. New Jersey, 211 U.S. 78, 99, 29 S. Ct. 14, 19-20, 53 L. Ed. 97 (1908); Griswold v. Connecticut, 381 U.S. 479, 484, 85 S. Ct. 1678, 1681, 14 L. Ed. 2d 510 (1965). A third field of inquiry is, of course, the intent of the Framers of the Constitution, to be ascertained by an examination of the document as a whole, as well as by an analysis of the legislative history. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406-407, 4 L. Ed. 579 (1819); United States v. Classic, 313 U.S. 299, 315-16, 61 S. Ct. 1031, 1038, 85 L. Ed. 1368 (1941). See also People v. Fancher, 50 N. Y. 288, 291-92 (1872) (on interpretation of constitutions generally).

 A. Pre-Adoption History

 Under the common law the powers of state agents were limited and the requirement for an arrest warrant was strictly enforced. 4 W. Blackstone, Commentaries *289-*295. See also 1 M. Hale, Pleas of the Crown 578-90 (1736); 4 E. Coke, Institutes 176 (1797 ed.). Searches, as part of the process of investigation, were also frowned upon. See 16 Hansard, Parl. Hist. Eng. 207-210 (1813) (debates 1766).

 In Entick v. Carrington, 19 How. St. Tr. 1030, 1044 (1765), Lord Chief Justice Camden, speaking for the court, noted that if the searcher admits the trespass,

 
he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of the common law. If no such excuse can be found or produced, the silence of the books is authority against the defendant and the plaintiff must have judgment [in trespass]. Id. at 1066.

 The fact that many would not challenge the wrongful exercise of power by a government official cannot, by prescription, validate improperly claimed authority. As Lord Chief Justice Camden pointed out in Entick:

 
there has been a general submission of guilt and poverty to power and the terror of punishment. But it would be strange doctrine to assert that all the people of this land are bound to acknowledge that to be universal law, ...

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