                      T.C. Memo. 1998-72


                  UNITED STATES TAX COURT


               ROGER W. MILLER, Petitioner v.
        COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 128-96.           Filed February 23, 1998.


     Robert J. Chicoine, Larry N. Johnson, John Mark

Colvin, and Darrell D. Hallett, for petitioner.

     William A. McCarthy, for respondent.


                      MEMORANDUM OPINION

     COHEN, Chief Judge:   Petitioner Roger W. Miller's

Unopposed Motion for a Separate Trial on the Exclusionary

Issue was granted, and evidence was taken on this

preliminary matter.   The issue now before the Court is

whether the exclusionary rule should be applied to suppress,

at a separate trial on the deficiency issue, evidence seized

at the Bellingham, Washington, airport by a U.S. Border
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Patrol agent and evidence obtained as a result of that

seizure.   Petitioner resided in East Orland, Maine, at the

time he filed his petition.

                           Background

Border Patrol Seizure

      On February 28, 1993, petitioner and a companion,

James Goncalo (Goncalo), arrived at the Bellingham,

Washington, airport intending to board a flight to Los

Angeles, California.    Petitioner and Goncalo arrived at the

airport 15 to 20 minutes before their flight was scheduled

to depart.

     As the two men walked towards the airport terminal from

the airport lot where they had parked their car, George T.

Reese (Reese), a senior patrol agent of the U.S. Border

Patrol (Border Patrol), noticed the men.    Reese was working

alone at the Bellingham airport and bus station looking for

illegal aliens headed towards the interior of the United

States.    As a Border Patrol officer, Reese's primary

function was the enforcement of immigration laws of the

United States.   As a secondary function, Reese was

authorized by letters from the U.S. Drug Enforcement

Administration (DEA) and the U.S. Customs Service (Customs

Service) to investigate certain Federal narcotics and

currency violations.    The enforcement of customs laws
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sometimes involves the seizure of cash being illegally

transported across the international border.     In Reese's

experience, narcotics and currency couriers, who frequently

use Bellingham airport, travel lightly.

     Reese, dressed in full Border Patrol uniform to include

a visible sidearm, approached petitioner and Goncalo at the

entrance of the airport.   Petitioner and Goncalo were each

carrying one small carry-on bag.     Reese asked the two men

where they were from and for identification.     Petitioner

unzipped his carry-on bag to obtain his driver's license.

Petitioner and Goncalo each handed his driver's license to

Reese, who examined the licenses.     After asking where

petitioner and Goncalo were from and looking at their

driver's licenses, Reese no longer suspected that petitioner

and Goncalo were not U.S. citizens.     Reese did not return

the driver's license to petitioner at that time.

     After looking at petitioner's and Goncalo's driver's

licenses, Reese asked to see their airplane tickets.

Petitioner's and Goncalo's tickets were in the names of

R. Johnson and J. Johnson.   Petitioner claimed that the

tickets were not in his and Goncalo's names because he had

purchased them from a man in a bar who offered him a "good

buy".   Although Reese knew that traveling under fictitious

names is a common practice, he did not believe petitioner's
                              - 4 -


explanation about the tickets and his suspicions regarding

petitioner increased.    Petitioner's explanation about the

tickets was untrue and was the first of numerous lies that

petitioner told Reese and other law enforcement officers

that day.   Reese did not give the tickets back to

petitioner.

     Reese next inquired about the purpose of petitioner's

trip.   Petitioner replied that he and Goncalo were traveling

to Los Angeles to purchase automobiles.    Because this

explanation is commonly used by currency violators and

narcotics dealers who carry large amounts of money, Reese

began to suspect that petitioner and Goncalo were narcotics

or currency smugglers.

     Reese asked petitioner how he intended to pay for the

automobiles.   Petitioner told Reese that he was carrying

approximately $600 in cash.    Reese discovered that

petitioner and Goncalo were carrying $138,921 of currency in

their bags.

     After Reese discovered the currency, he, petitioner,

and Goncalo went to the Border Patrol station in a Border

Patrol vehicle (patrol car).    By the time they arrived at

the Border Patrol station, Reese suspected that the currency

that petitioner had been carrying could be proceeds from

criminal activity.   At the station, Reese had petitioner and
                              - 5 -


Goncalo empty their pockets and placed them in a holding

cell.   The Border Patrol station had limited space.    Reese

continued to question petitioner and Goncalo together and

individually.   When not being questioned, petitioner and

Goncalo sat in the holding cell.

   During questioning at the Border Patrol station, Reese

asked petitioner if he had filed tax returns in the past.

Reese noted these tax questions in his routine report of the

incident.   Asking questions about tax returns is not

standard practice for Border Patrol agents.

   After questioning petitioner and Goncalo on his own at

the Border Patrol station, Reese telephoned DEA Special

Agent Robert D. Parks (Parks) at his home and asked him to

come to the station to talk with petitioner.   After Parks

arrived and asked petitioner questions, Parks telephoned

Customs Service agents and asked them to talk to petitioner.

Two or three Customs Service agents came to the station and

asked petitioner questions.

   After petitioner was questioned by a total of four or

five officers, he was told he was free to leave.   The

officers did not return petitioner's wallet or any of the

seized currency before petitioner left the station.

   Reese did not inform petitioner that petitioner could

refuse to answer his questions, refuse to accompany him to
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the Border Patrol station, or terminate the encounter at any

time.   Reese did not provide Miranda warnings to petitioner

or Goncalo at the airport or at anytime that day.    Reese had

received training in how to determine, in a given situation,

whether there is probable cause that a crime has been

committed.   Reese had also received training both at the

Border Patrol Academy and at numerous post-academy training

courses in how to conduct appropriately an investigative

search.   In the course of Reese's 27-year career at the

Border Patrol, he had participated in approximately 30

narcotics seizures at the Bellingham airport and

approximately 40 currency seizures.

Agency Relationships

   There was no formal or informal agreement to exchange

information between the Internal Revenue Service (IRS) and

the Border Patrol in Bellingham, Washington.   The IRS did

not participate in the subject search and seizure.

   Special Agent James Howisey (Howisey), a Criminal

Investigation Division (CID) agent for the IRS, traveled to

the DEA office in Blaine, Washington, approximately once a

year while he was assigned to the Everett, Washington, IRS

office.   Howisey met with DEA agents at the Blaine DEA

office to discuss IRS CID functions and describe types of

cases that might make good tax cases.   When Howisey visited,
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he would tell the DEA agents what kinds of things interested

him, and they would try to recall cases that might fit his

criteria.   DEA agents in the Blaine office understood that

Howisey would be interested in cases involving large amounts

of currency or assets with a clear drug connection.    When

Howisey visited the Blaine DEA office on August 17, 1994,

DEA agents mentioned that he might want to look at

petitioner's file as well as approximately six other files

that might have potential as tax cases.

   During the period in question (February 1993 to August

1994), Parks was the resident agent in charge of the Blaine,

Washington, DEA office.    Parks personally selected files

that he thought would be most relevant to share with the

IRS.

   DEA agents in the Blaine office work closely with the

Customs Service and the Border Patrol on currency cases.

The Blaine DEA office operated drug task forces that

included representation from the Border Patrol, the Royal

Canadian Mounted Police, and State and local police, but not

the IRS.    Procedural History

   The Government brought an action in the U.S. District

Court for the Western District of Washington to forfeit the

money seized from petitioner and Goncalo on the theory that

it was the proceeds of narcotics trafficking.    Petitioner
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filed a claim in District Court asserting that he owned the

currency, that it was not the proceeds of narcotics

trafficking, and that evidence of the currency should be

suppressed in the District Court proceeding because it was

the product of an unconstitutional search and seizure in

violation of the Fourth Amendment.    The District Court

granted petitioner's motion to suppress the evidence seized

in the search and all statements made by petitioner after

the search as fruit of the unlawful seizure, stating:

     What happened on February 28, 1993, as shown by
     the evidence, is that an experienced officer had a
     hunch that two young men might be transporting
     drug proceeds; he did not have probable cause or a
     reasonable suspicion supported by articulable
     facts. He stopped and questioned the two men in a
     way that placed them under his control after the
     first few moments. Consent given under what the
     subject feels to be compulsion is not voluntary.
     * * * Here, if consenting words were in fact
     uttered, they were not spoken voluntarily.

United States v. $138,921 in U.S. Currency, No. C93-1116WD,

slip op. at 4-5 (W.D. Wash., July 27, 1994) (order on motion

to suppress).   The District Court held that the Government

did not sustain its burden of proof to show consent and

there was no other basis on which the warrantless search

could be held lawful.   Id. at 5.    Petitioner subsequently

consented to forfeiture of $18,921 of the seized currency,

and the remaining $120,000 was returned to him.
                            - 9 -


   Respondent determined deficiencies in income tax

resulting from unreported income earned from 1989 to 1993,

as well as amounts due for failure to pay estimated tax.

                          Discussion

     Petitioner contends that, under the principles of

collateral estoppel, respondent is barred from contesting

the District Court finding that petitioner's constitutional

rights were violated in the search and seizure.   We assume,

for purposes of this proceeding, that petitioner's

constitutional rights were violated by the seizure at the

Bellingham airport.   Cf. Houser v. Commissioner, 96 T.C.

184, 204 (1991).

   Assuming that his rights were violated, petitioner

contends that the exclusionary rule must be applied if:

(1) tax violations were within Reese's "zone of primary

interest", (2) there was a demonstrable understanding that

information gathered by one agency could be utilized by

another, or (3) Reese did not act in good faith during the

search and seizure.   Petitioner further contends that all

three of these things occurred and that all evidence

obtained as a result of the seizure at the Bellingham

airport should be suppressed in this case.   Respondent

maintains that none of the three circumstances describe the
                             - 10 -


instant case and that the exclusionary rule should not be

applied.   We consider these contentions seriatim.

"Zone of Primary Interest"

   In United States v. Janis, 428 U.S. 433, 458 (1976), the

U.S. Supreme Court mentioned a seizing officer's "zone of

primary interest" but did not elaborate on the phrase.

Courts have focused on officers' zones of primary interest

to predict whether applying the exclusionary rule in various

contexts would deter future unlawful searches and seizures.

See 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; Adamson v. Commissioner,

745 F.2d 541, 546 (9th Cir. 1984), affg. T.C. Memo. 1982-

371; Tirado v. Commissioner, 689 F.2d 307, 314 (2d Cir.

1982), affg. 74 T.C. 14 (1980); Black Forge, Inc. v.

Commissioner, 78 T.C. 1004, 1011-1012 (1982).

   Presumably, if the proposed use of the evidence is close

to a seizing officer's zone of primary interest, the

inference is stronger that the officer had this use in mind

when making the seizure.     Tirado v. Commissioner, supra at

311.   To estimate an officer's zone of primary interest,

courts rely on commonsense assumptions about "human nature

and the interrelationship of the various components of the

law enforcement system." United States v. Janis, supra at
                            - 11 -


459; Grimes v. Commissioner, supra at 289.   Estimations of

an officer's zone of primary interest might also include

whether an officer likely contemplated the particular

challenged use of the evidence at the time of seizure and,

if so, whether such use likely motivated him or her.    See

Tirado v. Commissioner, supra at 311.

   As a member of the Border Patrol, Reese's primary

function was to enforce immigration laws of the United

States.   As a secondary function, Reese was authorized by

the DEA and Customs Service to enforce certain Federal

narcotics and currency laws.   On the day of the subject

search and seizure, Reese was assigned to surveillance at

the Bellingham airport and bus station.   Considering his

primary and secondary functions and specific assignment on

the day the search and seizure occurred, we conclude that

tax concerns were not within Reese's zone of primary

interest.   See Grimes v. Commissioner, supra at 290

(enforcement of civil tax law secondary to FBI agent);

Tirado v. Commissioner, supra at 314 (DEA agents have no

general motivating interest to assist enforcement of civil

tax obligations).

   Although incongruous conduct of a seizing officer might

affect our determination of an officer's zone of primary

interest, e.g., Tirado v. Commissioner, supra at 312, we
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find no such conduct in the instant case.   Although it is

not standard practice in the Border Patrol to ask people who

are carrying large amounts of currency questions about tax

returns, Reese explained that he asked petitioner tax

questions to determine whether petitioner had a legitimate

source for his income.   Reese's questions about petitioner's

tax returns in the circumstances of this case do not

indicate that tax violations were in his zone of primary

interest.

Agreement Between Agencies

   Petitioner contends that an agreement to share

information between agencies in this case mandates

application of the exclusionary rule.   Courts frequently

examine whether agreements exist between agencies, to

determine whether suppressing evidence illegally obtained by

one agency and offered by another will deter future unlawful

searches and seizures.   Grimes v. Commissioner, supra at

290; Wolf v. Commissioner, supra at 195; Tirado v.

Commissioner, supra at 314-315; Guzzetta v. Commissioner, 78

T.C. 173, 180-182 (1982); Black Forge, Inc. v. Commissioner,

supra at 1011.   Although generally recognizing that such

agreements increase the likelihood that deterrence will be

achieved by applying the exclusionary rule, courts have

considered a variety of elements in determining whether the
                              - 13 -


arrangements before them are of the sort that would warrant

excluding the evidence.     Grimes v. Commissioner, supra at

290 (no preexisting implicit or explicit agreement); Wolf v.

Commissioner, supra at 195 (no explicit agreement); Tirado

v. Commissioner, supra at 314-315 (no general policy,

liaison agreement, or specific agreement on specific case

regarding exchange of information; no explicit and

demonstrable understanding); Guzzetta v. Commissioner, supra

at 180-182 (discretionary liaison insufficient); Black

Forge, Inc. v. Commissioner, supra at 1011 (no prior

agreement).

   We reject petitioner's contention that the Blaine,

Washington, DEA office practice of periodically permitting

IRS agents to review case files mandates application of the

exclusionary rule.   Petitioner's position that a seizing

officer's agency need not be involved in an agreement to

mandate application of the exclusionary rule is unsupported

and unpersuasive.    See United States v. Janis, supra at 448

(seizing officer is primary object of sanction).     Petitioner

argues that suppressing the evidence will achieve deterrence

because, although the alleged agreement was between the IRS

and DEA, the Border Patrol officer who seized the evidence

was authorized by the DEA to enforce certain Federal

narcotics violations.     We cannot conclude that deterrence
                             - 14 -


would be achieved through this attenuated connection.   See

United States v. Janis, supra at 448-454 (discussing effect

attenuation has on deterrence in application of exclusionary

rule).

   There is no evidence of an agreement that directly links

the Border Patrol and the IRS.    Moreover, even if, instead

of the DEA, the practice were between the Border Patrol and

the IRS, the type of informal, voluntary, and discretionary

one-way transfer of information that occurred in this case

would be insufficient to justify application of the

exclusionary rule.   See Guzzetta v. Commissioner, supra at

181-182.    Therefore, no agreements between agencies in this

case justify imposition of the exclusionary rule.

Bad Faith

   Petitioner's contention that the exclusionary rule

should be applied because Reese did not act in good faith

when he seized the subject evidence is based on the

supposition that, although primary, deterrence is not the

only consideration for exclusionary rule application.    See

INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-1051 (1984)

(egregious Fourth Amendment violations might transgress

notions of fundamental fairness and undermine the probative

value of the evidence obtained); Elkins v. United States,

364 U.S. 206, 222 (1960) (in addition to deterrence, the
                            - 15 -


rule works to preserve judicial integrity).   Petitioner

urges the application of a negligence standard of bad faith

and relies in part on events occurring at the Border Patrol

station subsequent to the seizure of cash at the airport.

Petitioner recognizes that Reese's conduct at the airport

was "not a significant departure from the rules of

engagement enjoyed by border patrol agents at the border."

We are not persuaded that Reese's actions are the type of

egregious violations that should lead to exclusion of

evidence other than as previously ordered by the District

Court.   Even in cases where questionable conduct is

attributable to IRS agents, suppression of evidence

generally is not a suitable sanction in a civil tax case.

Weiss v. Commissioner, 919 F.2d 115, 118-119 (9th Cir.

1990), affg. T.C. Memo. 1988-586; Jones v. Commissioner, 97

T.C. 7, 27 (1991).   Nothing about this case causes us to

reexamine the consistent refusal of courts to apply the

exclusionary rule in this context.

   We have considered the other arguments of the parties,

and they are either without merit or unnecessary in view of

our resolution of the issues.   There is no basis for

suppressing evidence in this case.

                                     An Order calendaring

                                this case for further trial
- 16 -


   will be issued.
