The opinion of the court was delivered by: JACKSON
Supplemental Memorandum and Order
Petitioner IRS has moved for reconsideration of the Court's Memorandum and Order of July 6, 1983, denying enforcement of its investigative subpoena issued to respondent Deak-Perea pursuant to 26 U.S.C. § 7602, citing, for the first time, the case of United Sttes v. Calandra, 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974), as "controlling," Calandra, it asserts, impairs Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L. Ed. 319, 40 S. Ct. 182, (1920), as authority for the proposition for which the Court cited it, viz., that evidence first acquired by a Fourth Amendment transgression may not thereafter, once restored to the victim's possession, be reacquired by legal process as if the violation had never occurred.
Calandra is undoubtedly relevant authority. The majority held in Calandra that the exclusionary rule does not extend to grand jury proceedings, and that a target witness before a grand jury may not, therefore, decline to answer, on Fourth Amendment grounds, a question about a crime of which he would never have been suspected but for an unlawful seizure. (He retains, of course, his Fifth Amendment rights). In distinguishing Silverthorne, 414 U.S. at 352 n. 8, however, the majority noted, inter alia, that in Silverthorne the subpoena had been issued to "recaptur[e] the original documents" as "useful" in a forthcoming criminal prosecution, which appears to be the purpose for which the subpoena was issued here, since the IRS now knows -- whether it is entitled to or not -- what respondent's original records will disclose about the taxpayer's business with it.
The majority also observed in Calandra that the exclusionary rule's "primary purpose" is to deter future unlawful conduct by government agents, not to redress past injury to its victims, and that "[a]s with any remedial device, the application of the rule [is] restricted to those areas where its remedial objectives are . . . most efficaciously served." 414 U.S. at 347-48. Assuming arguendo that a single IRS special agent possesses all the attributes of a grand jury as a "grand inquest," see Blair v. United States, 250 U.S. 273, 282, 63 L. Ed. 979, 39 S. Ct. 468 (1919), when he issues a subpoena, and that it is, indeed, the spirit of the exclusionary rule which inhabits this Court's finding of an abuse of process in the agent's use of the subpoena here, the Court remains of the opinion that to decline to enforce it will have the salutary effect of deterring calls for regulatory inspection to gain entire to an inspectee's premises on less benign errands and that its original ruling, is, thus, consistent with Calandra.
For the foregoing reasons, therefore, it is, this 17th day of August, 1983,
Ordered, that petitioner's motion for reconsideration is denied.
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