SEARCH AND SEIZURE:  BEYOND LEON

 

 

              In the famous case of U.S. v. Leon, 468 U.S. 897 (1984, the Supreme Court decided that the exclusionary rule "does not bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in reasonable reliance on search warrants issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause."  468 U.S. at 900.  The "good faith" exception to the exclusionary rule constitutes a major limitation on the privacy protections afforded by the Fourth Amendment.

 

            There are several exceptions to the good faith exception. For example: falsity on the part of the officer who swears the affidavit underlying the warrant; rubber-stamping by the magistrate; warrants that do not have sufficient probable cause and affidavits and warrants that fail to meet substantive technical requirements 468 U.S. at 923.

 

           The purpose of the exclusionary rule is to "safeguard Fourth Amendment Rights through its deterrent effect... U.S. Calandra, 414 U.S. 338, 348 (1974).

 

           The Leon Court established an objective standard of good faith:

 

               "We also eschew inquiries into the subjective beliefs of law enforcement officers who seize evidence pursuant to a subsequently invalidated warrant.  Although we have suggested that, "on occasion the motive with which the officer conducts an illegal search may have relevance in determining the propriety of applying the exclusionary rule,"  Scot v. United States, 435 U.S. 128,129 n.  13 (1978), we feel that "sending state and federal courts on an expedition into the minds of police officers would produce a rave and fruitless misallocation of judicial resources."  468 U.S. at 922.

 

            However, in spite of the language above, falsity is still an issue.

 

           A bad faith attack on a warrant must focus on what the defense can prove the officer did know, as opposed to what a reasonable officer should know.    In People v. Leichty, 252 Cal Rptr. 669 (Cal App.  1988), cert denied, 109 S.Ct. 242 91989), the police officers got their evidence through an illegal warrant less search. They used the tainted evidence in their affidavit and the Court refused to apply the good faith exception because they didn't want to encourage official misconduct.

 

            In some cases, the officials have attempted to create probable cause through insulation.  However, the courts have held that the good faith of an

 Officer who obtained the warrant did not insulate the warrant from challenge if other government officials lied about the facts relevant to the warrant affidavit.  See Matter of Search of Building T and Secured Parking Area North of Emerson Blvd.  684 F.  Supp. 1491 (E.D. Mo. 1988).  The Supreme Court has also implied in Malley v. Briggs, 475 U.S. 335 (1986) that a ridiculous warrant can be challenged effectively even if the magistrate acted in good faith. See p. 346.

 

            Generally courts have held that information obtained through illegal warrant less searches cannot be used in an affidavit to get a search warrant.  However if the authorities relied on a court order or a statue, there may be an exception.

 

            In the case of U.S. v. Vasey, 834 F.2d 782 (9th Cir. 1987), the police stopped Vasey on a traffic violation and arrested him on a drug warrant.  The police impounded the car, obtained a search warrant and found cocaine in the car.  The court rejected the government's argument that the first search of the car was pursuant to a valid arrest and the warrant was based in part on tainted evidence.

 

            As you can see, there are many instances where the government makes errors in its warrant process.  You should be aware of the problems so you know what to do in case the IRS ever attacks you.

 

 

           

            If you didn't get a Statutory Notice of Deficiency, and the IRS is trying to collect from you, please consider the information in this article.  The last known address is the address, which the IRS reasonably believes the "taxpayer" wishes the notice to be sent. (Delman v. Comm., 384 F2d 929 (CA,3, 1967); Looper v. Comm., 73 TC 690 (1980).  If a return is filed and it shows that the individual has moved, the IRS is supposed to send the notice to the new address. (Maxfield v. Comm., 153 F2d 325 (CA,9 1846); U.S. v. Lehigh, 201 F. Supp 224 (WD Ark, 1961).

 

             The courts have also held the last known address to be the place where mail is most like to reach the individual involved (Schildhaus v. Moe, 63-2 USTC 9754 (SDNY, 1963). One problem to remember however, is that the notice does not actually have to be received in order to be valid. (Brown v. Lethert, 360 F2d 560 (CA8, 1966).  The IRS must exercise ordinary care in determining the correct address of the individual and they must mail the notice to that address. (U. S. v. Lehigh, 201 F. Supp 224 (WD Art, 1961); Delman v. Comm., TC Memo 1966-59); aff'd 67-2 USTC 9676 (CA 3, 1967).

 

            The burden is on the individual to provide the IRS with a concise notification of her new address. (Alta Sierra Vista, Inc. v. Comm., 62 TC 367 (1974 affd 538 F.2d 334 (CA9) and Weinroth v. Comm., 74 TC 430 (1980).  If the IRS learns of a new address, they are required to send the notice to the new address. (Harper v. Comm., BTA Memo Op Dkt 85753 91937; Welch v. Schweitzer, 106 F.2d 885 (CA9, 1939); Kennedy v. U.S., 403 F Supp 619 (WD Mich, 1975), affd 77-1 USTC 9418 (CA6,1977); and Frieling v. Comm., 81 TC 42 (1983); involving an oral notice of a new address).

 

            If the IRS sends the notice with an incomplete or incorrect address and it does not reach the individual, it is defective. The Tax Court can dismiss if the IRS makes a mistake and fails to send a proper notice of deficiency. (O'Brien v. Comm., 62 TC 543 (1974).  If a notice is found to be inadequate and returns have been filed, the IRS may not be able to make a valid assessment.  If the address is incorrect but the individual still gets the 90-day letter, then the notice of deficiency is valid. (Whitmer v. Lucas, 53 F2d 1006 (CA7, 1931).  As you can see, it is important to do a FOIA request and find out where the IRS mailed a statutory notice of deficiency if you did not receive yours. 

 

 

THE INCOME TAX IS KILLING THE MIDDLE CLASS

 

 

            Back in 1950 when my parents were young and starting their family, taxes were low and life was good.  People were able to get into the middle class with one income and raising a family was not so complicated.

 

            Nowadays things are really different.  Two people in the family are working and the kids are not getting near as much attention.  In many cases they are raised by the television. We are paying federal income tax, state income tax and in some cases we even pay city income taxes.  We also pay sales taxes, property taxes, and excise taxes on tires, gasoline, etc.  If you are self-employed you are even paying out social security tax at a rate of 15.3 percent.  A middle class family making about $58,000 (living in a large eastern city) comes to approximately the following:

 

            $6,000 in local taxes

            $3,000 in state taxes

 $10,000 in federal income tax        and FICA.

            $1,000 in sales taxes

              $600 in gas taxes for two cars

              $200 in telephone taxes

              $160 in tolls

 

 

            You guessed it, this normal family is paying about $21,000 in taxes and that doesn't even include their $6,000 mortgage interest; the interest on their automobiles and credit cards, and the automobile insurance on their cars. Does anyone wonder why the middle class is having a harder time making it?  In New York State, the "Tax Freedom" date is May 22.  That means that a person in New York would work 142 days of the year before he can even buy himself a hamburger.

            The problem is that the burden is continually growing and there is no evidence that it will stop or even slow down in the near future.

 

            Thomas Jefferson once said that a "wise and good government shall not take from the mouth of labor the bread it has earned."

 

            When our Constitution was drafted, the founders took Jefferson's advise to heart and they drafted Article I, Section 9, Subsection 4 of the United States Constitution which prohibited a direct head or income tax in the United States.  Today's income tax was born in the Sixteenth Amendment.  When the income tax first started it was set at 1 percent with a 7 percent top and only the rich had to pay because the exemption left the middle class out of the pinch. The American Middle class now pays over 80 percent of the $500 billion or so dollars that the Treasury gets every year in individual taxes.

 

            The fact is that the middle class is disappearing and the extremely high rates of taxation are, to a large extent, responsible for its demise.  To add insult to injury, the Congress has passed many penalties and has heaped interest on at usurious rates.  Anyone who owed the IRS $1,000 three years ago, could easily now owe the government $3,000 in taxes interest and penalties.  Since the average IRS audit nets $5,000 in back taxes, the damage done to the average family by the increased interest and penalties can easily force a middle class family into bankruptcy.

 

            To top it all off, the IRS is collecting the income tax from the people by subterfuge and deceit.  There is no statute in the Internal Revenue Code that makes any person liable to pay an income tax.  Individuals make themselves liable by voluntarily filing a tax return and making themselves liable for the income tax; alternatively, the government can file a return for an individual under 26 USC 6020(b) and make the individual liable once the assessment is recorded in the office of the Secretary of the Treasury.

 

            The IRS refers to our tax system as a voluntary system and they say that people "voluntarily" file returns.

 

            Recently, case law has strongly supported the contention that returns must be filed voluntarily, because individuals who file returns waive their Fifth Amendment Rights.  In the case of United States v. Sharp at 920 F2d 1167, (1990) the 4th Circuit said:

 

            The Fifth Amendment's protection against self- incrimination applies in any type of proceeding, whether civil, criminal, administrative, investigatory, or adjudicatory.  And it applies not only to evidence which may directly support a criminal conviction, but to information which would furnish a link in the chain of evidence that could lead to prosecution as well as evidence which an individual responsibly believes could be used against him in a criminal prosecution."

 

            Well, the fact is that the IRS routinely uses information on tax returns in criminal tax cases and in other types of criminal cases.  The IRS even warns the public in its Privacy Act Notice in the 1040 Instruction Booklet, that any information given to them may be given to the Department of Justice and it is clear that the DOJ can use the information in criminal tax cases.

 

            The IRS deliberately refers to the income tax system as "voluntary" because they know that individuals who file 1040 returns waive their Fifth Amendment Rights and they know that they cannot require individuals to waive their Fifth Amendment Rights.  However, if an individual does not file a return, the IRS may prosecute him for willful failure to file returns and the Court will deny the defendant's motion to quash the use of information on any previously filed returns by informing the defendant that he submitted the information voluntarily and so the IRS can use it in the criminal trail.

 

            Yes it is a Catch-22.  Individuals cannot be required to file tax returns, but if they don't file them, they can be prosecuted for willfully not filing the returns.  In other words, you are required to "voluntarily" waive your Fifth Amendment Rights or face criminal and civil penalties for neglecting to "volunteer."

 

            The IRS is using the word "voluntary" to mean "mandatory" so that they can have it both ways.  Now think about it.  If you are a middle class citizen, you are putting almost half of your income out to a government that gives you almost nothing in return.  You do not get health insurance from the government.  You do not get much of a retirement plan from the government and unlike all other industrial societies on the planet, your government does not have a safety net to help you if you are sick or become unemployed. The IRS can even invent an amount of money that you owe and seize your home and all your possessions (although they need a search warrant to enter your house, a judge will gladly give them one.)  They can garnish your wages down to about $300 per month and they can tow away your car and they can do all that without a court order.

 

            The tax system in the United States, which is destroying the middle class and offers them nothing of substance in return, is enforced by a Fascist Gestapo Agency that works above and beyond the Constitution. The First, Fourth and Fifth Amendments are completely ignored.

 

            Now, the next time that you get your tax return from your accountant and you prepare to sign it, you might just look it over and say to yourself.  Do I understand the contents of this return?  If you do understand it, then why did you give it to your accountant to prepare?  If you do not understand it, do you realize that you are committing perjury when you sign the return?  Do you think the government can require you to sign a document that you do not understand and also require you to sign it under the penalty of perjury?  Of course they cannot, that is why you are "voluntarily" signing it.  Do you realize that if you sign a 1040 and your accountant has made a mistake that you could prosecuted by the IRS and you could be sent to prison because you waived your Fifth Amendment Rights and gave them the information and that you committed perjury when you signed a return you did not understand?  Doesn't this make you mad?  Do you want to do something about it?  If so give my website to people and let them read for themselves. It is important to wake up and let the American People know how they are being fooled.