D.Neb.: Defendant’s cooperation with IRS civil audit was not by deception in not telling defendant he could be charged

While the government cannot use an IRS civil audit to investigate an IRS criminal case, that does not make a later criminal case automatically a violation of the Fourth or Fifth Amendment. Defendant’s cooperation was not induced by trickery just by not telling him that a criminal case could result. United States v. Koning, 2010 U.S. Dist. LEXIS 141148 (D. Neb. December 17, 2010):

There is no showing Baisden was detained, mandated or forced to attend any meetings with the IRS or to produce documents. Although “a consent search is unreasonable under the Fourth Amendment if the consent was induced by deceit, trickery or misrepresentation of the Internal Revenue agent,” (U.S. v. Powell, 835 F.2d 1095, 1098 (5th Cir. 1988)), the defendant has made no showing of IRS misconduct. Baisden consented to cooperate with the IRS by producing the documents requested by that agency. His Fourth Amendment rights were not violated. See, United States v. Irvine, 699 F.2d 43, 46 (1st Cir.1983) (records obtained during an IRS interview were not suppressed under the Fourth Amendment where the agent made no affirmative misrepresentations); United States v. Sclafani, 265 F.2d 408, 414-415 (2d Cir.1959) (holding that to obtain valid consent under the Fourth Amendment to review records for a civil audit, the taxpayer need not be told the government may commence criminal rather than civil proceedings with the records disclosed); U.S. v. Kaatz, 705 F.2d 1237, 1243 (10th Cir. 1983) (holding suppression of evidence obtained during a civil audit was not warranted where nothing in the record showed the defendants were misled by anything the IRS agent did or said. “Failure to warn that a criminal investigation may ensue is not fraud, deceit, or trickery.”).

There was a substantial basis for concluding that defendant was involved in drug transactions and that drugs would be found. The good faith exception would also apply. United States v. Estrada, 2010 U.S. Dist. LEXIS 141143 (D. Minn. December 17, 2010).*