                  T.C. Memo. 1998-335



                UNITED STATES TAX COURT



        CHARLES E. MARQUART, III, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 17509-97.              Filed September 22, 1998.




     P, a marijuana dealer, was arrested at his
residence. At the time of the arrest, the police made
a protective sweep of the residence, believing an
accomplice might be present. They found a number of
live marijuana plants plus documents showing P had
engaged in substantial cash transactions. P later pled
guilty to marijuana possession. R determined, on the
basis of documents seized when P was arrested, that P
had substantial unreported income for the years 1991
through 1995. P filed no returns for those years. P
concedes liability for tax unless the seized documents
are excluded in this proceeding. P argues the
documents were fruit of an improper search that
egregiously violated his Fourth Amendment rights.
     Held: The search was proper, the evidence will
not be excluded, and R's determination, as modified by
agreement of the parties, is upheld.
                               - 2 -




     William J. Johnston, for petitioner.

     Gregory M. Hahn, for respondent.



                        MEMORANDUM OPINION



     LARO, Judge:    Charles E. Marquart III has filed a motion in

limine seeking to exclude documents police officers seized from

his residence.1   Petitioner contends the documents were seized in

the course of an improper search which egregiously violated his

Fourth Amendment right to be free of unreasonable searches and

seizures.   Petitioner concedes that if we do not exclude the

disputed documents, he is liable for income tax deficiencies and

additions to tax in amounts to which the parties have agreed.2

     1
       Petitioner's motion literally asks the Court to restrict
respondent from "presenting testimony concerning the calculation
of the amount of [his] indebtedness". However, the parties have
argued and treated the motion as though it were aimed at
excluding the seized documents from which respondent's
calculations were derived. We do the same.
     2
        Petitioner originally sought redetermination of the
following income tax deficiencies determined by respondent:
$20,253, $15,272, $10,323, $11,280, and $11,426 for the years
1991 through 1995, respectively. He also sought redetermination
of additions to tax for the same years under secs. 6651(a) and
6654 in the combined amounts of $6,227, $4,484, $3,012, $3,399,
and $3,481 respectively. Section references are to the Internal
                                                   (continued...)
                               - 3 -


Respondent concedes that if we exclude the documents, petitioner

is not liable for income tax deficiencies or additions to tax for

the years in issue.   We hold the search was proper, the documents

will not be excluded, and petitioner is liable for tax

deficiencies and additions to tax in the agreed-upon amounts.

                            Background

     Some of the facts have been stipulated and are so found.

The stipulated facts and the exhibits submitted therewith are

incorporated herein by this reference.   Petitioner resided in

Acme, Washington, when he petitioned the Court.

     Whatcom County sheriff's deputies entered and searched

petitioner's house on two separate occasions.   The documents

petitioner seeks to exclude were seized in the course of the

second search, but the origins of the dispute trace back to the

first search.

     2
      (...continued)
Revenue Code in effect for the years in issue. The parties have
since agreed that in the event the instant motion is denied,
petitioner will be liable for tax deficiencies and additions to
tax in the following amounts:


                                           Additions to Tax
                                          Sec.          Sec.
          Year          Deficiency        6651          6654
          1991            $11,108        $2,277         $638
          1992              7,475         1,869          326
          1993                727           182           32
          1994              4,628         1,157          239
          1995              3,639           910          199
                                - 4 -


     Sheriff's deputies first entered petitioner's house on

March 6, 1995.   A female member of petitioner's household had

called 911, then hung up without identifying herself.   The

deputies who responded to the call found indications that someone

might be inside, but they were unable to contact anyone by

telephone.   They secured from a local judicial officer by

telephone a search warrant that empowered them to go into the

house and check on the welfare of whoever might be inside.

     No one was home when the deputies entered petitioner's house

for the first time.    While checking the house to make sure no one

was in danger, the deputies saw and seized a number of suspicious

items including apparatus for growing marijuana indoors, a gun,

and some explosives.   The evidence seized and the officers'

personal observations of the premises strongly suggested that

petitioner's house had been used at some time to raise commercial

quantities of marijuana.

     On February 22, 1996, members of a local drug task force,

including some officers who had been present at the time of the

first entry, returned to petitioner's house.   On this occasion,

the deputies were there to execute a warrant for petitioner's

arrest, based on narcotic charges related to the first search of

petitioner's house.

     When the deputies entered petitioner's home to arrest him,

they had reason to believe more than one person might be present.
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While one of the officers was detaining petitioner, other

officers made a protective sweep of the house.      In the course of

the sweep, the officers saw evidence that marijuana was being

cultivated.   As a result, they secured from a local judicial

officer by telephone a search warrant that empowered them to

seize evidence of marijuana cultivation, documents showing who

exercised dominion and control of the premises, and documents

indicating sales or distribution of controlled substances.

     Among the items the arresting officers seized were receipts

that showed petitioner had spent substantial amounts of cash

buying auto parts.   These receipts demonstrated that petitioner,

whom they knew to be unemployed, nevertheless had plentiful cash

resources.    This corroborated other evidence that petitioner was

making extensive marijuana sales for cash.      In addition to the

seized documents, the officers seized a large number of live

marijuana plants and a motorcycle.      They carried much of the

evidence back to headquarters in a van which they had brought

with them when they set out to make the arrest.

     On September 25, 1997, petitioner pled guilty to marijuana

possession.

     Respondent obtained copies of documents the officers had

seized when they arrested petitioner and ascertained that

petitioner had not filed 1991 through 1995 Federal income tax
                                - 6 -


returns.    The ensuing investigation led to the deficiency notices

petitioner challenges in this proceeding.

                             Discussion

     Petitioner alleges that respondent calculated his tax

liability for the years in issue on the basis of documents seized

from his residence by State police officers during an unlawful

search.    He further contends that the search was such an

egregious violation of the Fourth Amendment to the Constitution

that the seized documents should be excluded from consideration

in this proceeding.

     We begin by noting that the exclusionary rule is primarily a

criminal law doctrine with limited application to civil

proceedings.    United States v. Janis, 428 U.S. 433 (1976).   In

Janis, the Court described a balancing test for identifying the

limited circumstances under which it would exclude unlawfully

seized evidence from a civil judicial proceeding.    Briefly, the

benefit to society of deterring police misconduct must outweigh

the cost to society of forgoing relevant, probative evidence.

Id. at 454.    This balancing test is derived from the purpose of

the exclusionary rule, which, the Court pointed out, is to deter

police misconduct.    The Court reasoned that in the absence of

valid empirical studies to demonstrate the existence or strength

of the deterrent effect of exclusion, courts are forced to assess

the likelihood of deterrence under the circumstances of the case
                                - 7 -


before them.   The Court stated that civil enforcement of Federal

tax laws lay outside the "zone of interest" of the State police

officers involved in Janis.    As a result of that and other

factors, the Court concluded that excluding tainted evidence in a

civil tax proceeding was unlikely to have a significant deterrent

effect.   The Court left open the possibility, however, that the

balance might shift in favor of exclusion if the State police

officer involved had a "responsibility or duty to, or agreement

with" Federal tax officials.    Id. at 455.

     Since Janis, courts considering whether to apply the

exclusionary rule in Federal civil tax cases have examined the

"zone of interest" of the police officers involved and have

generally looked for some sort of agreement between Federal tax

officials and the officers who conducted the allegedly improper

search.   See, e.g., Tirado v. Commissioner, 689 F.2d 307 (2d Cir.

1982), affg. on other grounds 74 T.C. 14 (1980).    Tirado extended

the Janis rationale to a case where some of the officers

conducting the search were employed by a Federal agency, namely

the Bureau of Narcotics, and another Federal agency, i.e., the

Internal Revenue Service (IRS), sought to use the allegedly

tainted evidence (a so-called intrasovereign situation).    In

Tirado, Federal narcotics agents took part in a search that

uncovered cash, documents, and other items which were later

sought to be used in a Federal civil tax proceeding.   Although
                               - 8 -


two Federal agencies were involved, the Court of Appeals for the

Second Circuit found that there was no cooperative agreement

between the Federal narcotics agents and the IRS.   In the

circumstances, the court held, the narcotics agents would not be

deterred from illegal searches if the evidence they seized were

excluded in a Federal civil tax proceeding.    See also Grimes v.

Commissioner, 82 F.3d 286, 290 (9th Cir. 1996); Wolf v.

Commissioner, 13 F.3d 189, 194-196 (6th Cir. 1993), affg. T.C.

Memo. 1992-432; Black Forge, Inc. v. Commissioner, 78 T.C. 1004,

1011-1012 (1982); Guzzetta v. Commissioner, 78 T.C. 173, 180-182

(1982).

     During the hearing on his motion, petitioner tried to elicit

testimony that would establish the existence of a cooperative

agreement between respondent and the officers who searched

petitioner's house.   He failed to do so and has now abandoned his

contention that any such agreement existed.   As a result,

petitioner has abandoned his primary argument for excluding the

documents in issue and now relies on an alternate argument to

justify exclusion.

     Petitioner contends that to preserve judicial integrity,

"egregious" police misconduct would justify the exclusion of

evidence in a civil tax proceeding without regard to the

allegedly misbehaving officers' "zone of interest".   He supports

this proposition by citing Orhorhage v. INS, 38 F.3d 488 (9th
                                - 9 -


Cir. 1994), and Adamson v. Commissioner, 745 F.2d 541 (9th Cir.

1984), affg. T.C. Memo. 1982-371.

     Orhorhage v. INS, supra, was not a tax case.     In Orhorhage,

the Court of Appeals for the Ninth Circuit found that an

Immigration and Naturalization Service (INS) agent acted

egregiously.   It barred the INS, the agency which employed the

officer, from using evidence he had seized in a civil deportation

proceeding.    The fact that, in Orhorhage, a single Federal agency

was involved in the illegal search and in the subsequent civil

enforcement proceeding weakens its precedential value in this

case.   In Adamson v. Commissioner, supra,   which was a Federal

civil tax case, the Court of Appeals for the Ninth Circuit found

there was no egregious behavior and, therefore, no need to

exclude disputed evidence.   In its most recent pronouncement on

the subject, the Court of Appeals reserved judgment on whether it

would exclude evidence in a civil tax proceeding solely on the

basis of egregious police misconduct.    Grimes v. Commissioner,

supra at 288 n.3.

     Since the Supreme Court's ruling in United States v. Janis,

supra, this Court has been reluctant to exclude otherwise

admissible evidence solely because of official misconduct.    See

Jones v. Commissioner, 97 T.C. 7, 27 (1991); Miller v.

Commissioner, T.C. Memo. 1998-72; Weiss v. Commissioner, T.C.

Memo. 1988-586, affd. 919 F.2d 115 (9th Cir. 1990).    In this
                               - 10 -


case, we do not reach the question whether an egregious violation

of the Fourth Amendment, in and of itself, warrants invoking the

exclusionary rule.    We find that the police officers involved did

not act improperly, much less egregiously, when they searched

petitioner's house.

     As the party moving for suppression of evidence, petitioner

bears the burden of proof.    Houser v. Commissioner, 96 T.C. 184,

196 (1991).   Petitioner has not met his burden.    At most, he has

pointed to circumstances that are subject to conflicting

interpretations and has invited us to assume bad faith on the

part of the officers involved and to ignore testimony that

contradicts his hypotheses.    We decline to do so.

     To support his bad faith theory, petitioner notes that on

the morning of the arrest, he left his house for a time. He

asserts that the deputies, who then had him under surveillance,

should have apprehended him outside his house.     He says they

waited until he went back inside simply because they wanted to

get into his house and conduct a search.    This supposition is

contradicted by the record.    Sergeant Steve DeFries, a

supervising officer who was at the scene, testified credibly at

the hearing that his officers were not in position to make the

arrest safely when petitioner left his house that morning.

     Petitioner also makes much of a hindsight observation by

Sergeant DeFries, expressing disappointment with the outcome of
                               - 11 -


the operation against petitioner.    The statement petitioner

relies on is: "if the van would not have been there * * * we

could have pulled it off".

     Petitioner had Sergeant DeFries on the witness stand and

could have examined him as to what the statement meant.    He

failed to do so.   Petitioner has the burden of proof as to the

meaning of the statement.    His offer of a speculative

interpretation favorable to him is not persuasive and fails to

meet his burden of proof.    We decline to find the behavior of the

police officers to be egregious on the bases of speculation and

innuendo.

     Petitioner also denies, again without supporting evidence,

that the officers needed to make a protective sweep once they had

him in custody.    This contradicts the testimony of the arresting

officers on several key points.    A number of factors led the

officers to believe someone else might be in the house with

petitioner when they entered to make the arrest.

     These officers put their lives on the line by entering a

house where they knew firearms and explosives had previously been

found.   They did not know how many armed suspects they might

encounter.   Society routinely asks them to assume such risks.    We

will not second-guess the reasonable steps they took to minimize

those risks to themselves and to their fellow officers.
                              - 12 -


     In the final analysis, petitioner has simply tried to

portray a straightforward police operation as a conspiracy to

subvert his privacy rights.   We are not persuaded by any of the

arguments petitioner makes to support his theory that such a

conspiracy existed.   Accordingly, petitioner's motion in limine

will be denied.

                                         An appropriate order will

                                    be issued, and decision will

                                    be entered for respondent

                                    reflecting the revised amounts

                                    to which the parties have

                                    agreed.
