Couch v. United States

RESPONDENT: United States
LOCATION: Pennsylvania State Capital Building

DOCKET NO.: 71-889
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 409 US 322 (1973)
ARGUED: Nov 14, 1972
DECIDED: Jan 09, 1973

John G. Rocovich, Jr. - for petitioner
Lawrence G. Wallace - argued the cause for the United States et al

Facts of the case


Media for Couch v. United States

Audio Transcription for Oral Argument - November 14, 1972 in Couch v. United States

Warren E. Burger:

We will hear arguments next in number 71-889, Couch against the United States.

Mr. Rocovich, you may proceed whenever you are ready.

John G. Rocovich, Jr.:

Mr. Chief Justice, may it please the court.

The facts surrounding this case are both clear and undisputed.

During the summer of 1969, a Field Revenue Agent commenced an investigation of the returns of the petitioner for the years 1964 through 1968.

Petitioner informed him that her records were temporarily in the possession of her accountant, whereupon the Field Agent proceeded to the accountant's office for the records and made available for his examination.

Now the records in question were primarily canceled checks and working papers which were made by the petitioner in her own handwriting for purposes of keeping records for her sole proprietorship restaurant.

The Field Agent examined the records for several days.

During the course of his examination he apparently suspected that criminal fraud was involved and he requested and received the assignment of a Special Revenue Agent.

The Trial Court found as matter of fact that the Special Agent in his capacity as such was conducting a joint investigation with the Field Revenue Agent for the purposes of ascertaining the correctness of the income tax return, plus the purpose of ascertaining whether there was any criminal tax fraud in the case.

The Special Agent, once he came to the case, proceeded to the accountant's offices, observed the petitioner's records, and thereupon went to the petitioner's house where he introduced himself, showed his credentials and gave a standard Miranda warning which included a statement that she did not have to produce any information and she was entitled to seek a lawyer's counsel before she responded to any questions.

And the special agent proceeded to question the petitioner and then proceeded to the petitioner's accountant's office to seize or copy the records.

In the meantime, petitioner heeded the special agent's advice and had contacted her accountant and lawyer, and advised the accountant to turn the records over to no one but her attorney.

When the special agent arrived at the accountant's office, the accountant refused to turnover the records.

The special agent at that point issued a summons to the accountant directing him to turn the records over.

From the special agent's return to the accountant's office on the return date, he discovered that the accountant had already turned the records over to me as the petitioner's attorney.

The government then instituted a proceeding to judicially enforce the summons under 7402(a) and 7604(b) of the Internal Revenue Code.

This action arises from an order of the District Court for the Western District of Virginia affirmed by the Fourth Circuit Court of Appeals directing me to turnover the books and records in question.

The central question we believe in this case is, whether or not the privileges against self-incrimination and unreasonable search and seizure prevents the government from seizing petitioner's personal books and records whenever they are out of her actual physical possession.

By way of background I think the government has never denied that the records in the hands of the accountant were the property of the petitioner.

In fact in their brief to the Fourth Circuit Court of Appeals they conceded that the records in question had they been in the hands of petitioner would have been protected by the privilege.

Thus the question becomes I think whether records created and owned by the petitioner somehow lose their privileged status when they are out of a actual physical possession.

William H. Rehnquist:

Mr. Rocovich, does the record show whether these records were of a nature that the taxpayer would turn them over to her accountant say for a few days each year and then get them back or whether on the other hand they were more or less permanently in the custody of her accountant?

John G. Rocovich, Jr.:

Well, I believe the accountant testified that the records had been delivered to him over a period of years, 55 on to for the purpose of preparing tax returns.

As a matter of fact, some records were at the petitioner's home and some records were at the accountant's office and she delivered the balance of the records to the accountant for the purpose of facilitating the sub-investigation.

I don't think there is any evidence to the effect that the records were owned by the accountant.

In fact, the petitioner has always asserted through the proceedings below that they were clearly her records and owned by her and the government has conceded it.

William H. Rehnquist:

How about year in year out custody or possession of records, does the record of this proceeding indicated who had that?

John G. Rocovich, Jr.:

I don't believe it does indicate that in complete, no sir.

The petitioner believes that the test of whether she may rely on the Fifth and Fourth Amendment privileges is whether she possesses substantial instance of ownership in the records.