Defendant’s business records were taken by a 50% owner of their business and turned over to the IRS. The government didn’t prompt or suggest the seizure of the records. Once they were turned over, they could be fully reviewed by the IRS. United States v. Koutromanos, 2016 U.S. Dist. LEXIS 55966 (E.D.Wis. March 7, 2016), adopted 2016 U.S. Dist. LEXIS 55967 (E.D.Wis. April 27, 2016):
1. Law Enforcement Knowledge and Acquiescence
. . .
The evidence does not show that that the IRS agents in any way encouraged Bouikidis or Maltezos to obtain Omega’s records, and their knowledge that Bouikidis or Maltezos wanted to provide records is insufficient to show acquiescence in the search.
2. Bouikidis and Maltezos’ Purpose
As to the second factor—the private party’s purpose—Koutromanos argues that Bouikidis and Maltezos’ primary purpose in conducting the search was to assist law enforcement and that Bouikidis’ many contacts with the federal agents indicated that he was an informant.
The Shahid court makes clear that the fact a private party “‘might also have intended to assist law enforcement,'” does not transform him into a government agent “so long as ‘the private party has had a legitimate independent motivation for engaging in the challenged conduct.'” 117 F.3d at 326 (quoting United States v. McAllister, 18 F.3d 1412, 1418 (7th Cir. 1994)). In this case, the evidence shows that even if Bouikidis and Maltezos intended to assist law enforcement, they also had their own, independent motivations. Bouikidis testified that he brought up the topic of the Omega Restaurant with the IRS agents “for [his] own reasons,” which included supporting “the thing [he] started with [the] IRS.” (Tr. 45.)
3. Rewards
Though Koutromanos concedes that the record does not contain evidence that the agents ever offered Bouikidis or Maltezos a reward (Def.’s Br. at 21), he contends that Bouikidis and Maltezos’ subjective belief they would be rewarded establishes that they were de facto government agents. Even if reward was on the minds of Bouikidis and Maltezos, as evidenced by Bouikidis applying for a reward (Tr. 38-39), Bouikidis did not learn about the possibility of a reward from the IRS agents (Tr. 39), as Koutromanos acknowledges. Rather he learned about the possibility of a reward from his friend Gus at El Greco’s Restaurant. (Id.) Thus, the record does not show that the government induced Bouikidis or Maltezos to obtain the Omega records with a promise of a reward.
4. Warrant
Finally, Koutromanos argues that even if the government’s seizure of Koutromanos’ papers through Bouikidis and Maltezos did not offend the Fourth Amendment, its search of them did. (Def.’s Br. at 30.) Koutromanos argues that the government’s search of his papers exceeded the scope of any prior private search conducted by Bouikidis. (Id. at 33.)
. . .
On this record, I conclude that Maltezos was better situated to know his business relationship with Omega and his ability to access Omega’s office and records than Bouikidis. Maltezos’ testimony that during the relevant time he remained 50 percent owner of Omega is not contradicted by the reports that he lost control of the daily activities of Omega. (Exh. 13 ¶¶ 2, 10.) As co-owner and co-manager of Omega, Maltezos continued to have access to the office (Tr. 78) and the combination to the office lock (Tr. 68). He testified that the records were on top of the desk that he shared with Koutromanos and that the records were “[his] records too.” (Tr. 68-70, 76.) Like in Aldridge, Maltezos was not a “stranger or casual friend,” but the co-owner and co-manager of the business. Thus, as in Aldridge, I find that Maltezos had authority to consent, and did consent, to the government’s acquisition of Omega’s documents when he gave the records to Bouikidis with knowledge that Bouikidis would in turn share them with the IRS.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)