Donn Vonderahe and Barbara Vonderahe v. Roy H. Howland

508 F.2d 364 73-1 USTC P 9333 , 74-2 USTC P 9825 Donn VonderAHE and Barbara VonderAhe, Plaintiffs-Appellants, v. Roy H. HOWLAND et al., Defendants-Appellees. No. 71-1982. United States Court of Appeals, Ninth Circuit. Nov. 7, 1974, Rehearing Denied Feb. 18, 1975. Neil F. Horton (argued) of Johnston, Klein & Horton, Oakland, Cal., for plaintiffs-appellants. Crombie J. D. Garrett (argued), Atty., Appellate Section, Dept. of Justice, Washington, D.C., for defendants-appellees. Before MOORE, 1 BARNES and ELY, Circuit Judges. MOORE, Circuit Judge: 1 Just after 8:00 A.M., on the morning of June 16, 1970, a group of four Special Agents of the Internal Revenue Service (IRS) arrived at the office of Dr. Donn VonderAhe, a dentist practicing in Fremont, California. Simultaneously, a second group of three agents arrived at the home of the doctor and his wife, Barbara, in Newark, California. Each group was armed with a search warrant issued by a United States Commissioner. The Agents then proceeded to search or, more accurately, to ransack both office and home and to asport practically every piece of paper they could lay their hands on. 2 The background to this rather extraordinary…

Just after 8:00 A. M., on the morning of June 16, 1970, a group of four Special Agents of the Internal Revenue Service (IRS) arrived at the office of Dr. Donn VonderAhe, a dentist practicing in Fremont, California. Simultaneously, a second group of three agents arrived at the home of the doctor and his wife, Barbara, in Newark, California. Each group was armed with a search warrant issued by a United States Commissioner. The Agents then proceeded to search or, more accurately, to ransack both office and home and to asport practically every piece of paper they could lay their hands on.

The background to this rather extraordinary procedure is best portrayed somewhat chronologically.

Dr. VonderAhe (usually referred to herein as the “doctor”) apparently has a successful dental practice. On June 16th his office consisted of eight rooms and a hallway. He had one or more employees who kept his patients’ records and recorded bills and payments.

The doctor and his wife, Barbara, filed joint income tax returns. In the early part of 1969, i. e., between early January and late March, an IRS Agent (Holmes) made an audit of their 1966 and 1967 income tax returns. There were made available to…

(concurring in part; dissenting in part):

I concur in my Brother Moore’s majority opinion insofar as it condemns, on Fourth Amendment grounds, the over-breadth of the warrant and the absolutely unreasonable scope of the search. I would go further, however, and hold in favor of the appellants as to the so-called yellow sheets and green cards because their seizure, in my opinion, was thoroughly corrupted by the intolerable process under which the search and seizure were conducted. Moreover,. I do not retreat from the Fifth Amendment views originally set forth by me and which were originally endorsed by both Judges Moore and Barnes. 1 I note at *373 the beginning that I see no irreconcilable conflict between my original opinion and our court’s opinion in United States v. Murray, 492 F.2d 178 (9th Cir. 1973). In our case, the flagrant abuse of the search and seizure process necessitated our judicial disapproval. In Murray , on the other hand, despite a substantial question as to whether a certain address book was testimonial, the seizure of the book was properly upheld as resulting from a search incident to a lawful arrest.

Because the original opinion written by me for a unanimous…