# Couch v. United States/Opinion of the Court

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* Concurring Opinion Brennan
* Dissenting Opinions Douglas Marshall
[p323] MR. JUSTICE POWELL delivered the opinion of the Court.
On January 7, 1970, the Government filed a petition in the United States District Court for the Western District of Virginia, pursuant to 26 U.S.C. §§ 7402 (b) and 7604 (a), seeking enforcement of an Internal Revenue summons in connection with an investigation of petitioner's tax liability from 1964-1968. The summons was directed to petitioner's accountant for the production of:
   "All books, records, bank statements, cancelled checks, deposit ticket copies, workpapers and all other pertinent documents pertaining to the tax liability of the above taxpayer."
The question is whether the taxpayer may invoke her Fifth Amendment privilege against compulsory self-incrimination to prevent the production of her business and tax records in the possession of her accountant. [p324] Both the District Court and the Court of Appeals for the Fourth Circuit held the privilege unavailable. We granted certiorari, 405 U.S. 1038.
Petitioner is the sole proprietress of a restaurant. Since 1955 she had given bank statements, payroll records, and reports of sales and expenditures to her accountant, Harold Shaffer, for the purpose of preparing her income tax returns. The accountant was not petitioner's personal employee but an independent contractor with his own office and numerous other clients who compensated him on a piecework basis. When petitioner surrendered possession of her records to Shaffer, she, of course, retained title in herself.
During the summer of 1969, Internal Revenue Agent Dennis Groves commenced an investigation of petitioner's tax returns. After examining her books and records in Shaffer's office with his permission, Groves found indications of a substantial understatement of gross income. Groves thereupon reported the case to the Intelligence Division of the Internal Revenue Service.
Special Agent Jennings of the Intelligence Division next commenced a joint investigation with Groves to determine petitioner's correct tax liability, the possibility of income tax fraud and the imposition of tax fraud penalties, and, lastly, the possibility of a recommendation of a criminal tax violation. Jennings first introduced himself to petitioner, gave her Miranda warnings [p325] as required by IRS directive, and then issued the summons to Shaffer after the latter refused to let him see, remove, or microfilm petitioner's records.
When Jennings arrived at Shaffer's office on September 2, 1969, the return day of the summons, to view the records, he found that Shaffer, at petitioner's request, had delivered the documents to petitioner's attorney. Jennings thereupon petitioned the District Court for enforcement of the summons, and petitioner intervened, asserting that the ownership of the records warranted a Fifth Amendment privilege to bar their production.

## I

[p326] It is now undisputed that a special agent is authorized, pursuant to 26 U.S.C. § 7602, to issue an Internal Revenue summons in aid of a tax investigation with civil and possible criminal consequences. In Donaldson v. United States, 400 U.S. 517 (1971), the Court upheld such a summons, noting that:
   "Congress clearly has authorized the use of the summons in investigating what may prove to be criminal conduct.... There is no statutory suggestion for any meaningful line of distinction, for civil as compared with criminal purposes, at the point of a special agent's appearance.... To draw a line where a special agent appears would require the Service, in a situation of suspected but undetermined fraud, to forgo either the use of the summons or the potentiality of an ultimate recommendation for prosecution. We refuse to draw that line and thus to stultify enforcement of federal law." Id., at 535-336.
The Court in Donaldson noted that the taxpayer there had attempted to intervene, pursuant to Fed. Rule Civ. Proc. 24 (a)(2), to bar production of records "in which the taxpayer had no proprietary interest of any kind, which are owned by the third person, which are in his [p327] hands, and which relate to the third person's business transactions with the taxpayer." Id., at 523. The Court quite properly concluded that, under those facts, no absolute right to intervene existed. Id., at 530-531. The instant case, however, presents a different question. Here petitioner does own the business records which the Government seeks to review and the courts below did permit her to intervene. The essential inquiry is whether her proprietary interest further enables her to assert successfully a privilege against compulsory self-incrimination to bar enforcement of the summons and production of the records, despite the fact that the records no longer remained in her possession.

## II

The importance of preserving inviolate the privilege against compulsory self-incrimination has often been stated by this Court and need not be elaborated. Counselman v. Hitchcock, 142 U.S. 547 (1892); Malloy v. Hogan, 378 U.S. 1 (1964); Miranda v. Arizona, 384 U.S. 436 (1966). By its very nature, the privilege is an intimate and personal one. It respects a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation. Historically, the privilege sprang from an abhorrence of governmental assault against the single individual accused of crime and the temptation on the part of the State to resort to the expedient of compelling incriminating evidence from one's own mouth. United States v. White, 322 U.S. 694, 698 (1944). The Court has thought the privilege necessary to prevent any "recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality," Ullmann v. United States, 350 U.S. 422, 428 (1956).
[p328] In Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964), the Court articulated the policies and purposes of the privilege:
   "[O]ur unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government... in its contest with the individual to shoulder the entire load,'... our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life'...."
It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him. As Mr. Justice Holmes put it: "A party is privileged from producing the evidence but not from its production." Johnson v. United States, 228 U.S. 457, 458 (1913). The Constitution explicitly prohibits compelling an accused to bear witness "against himself"; it necessarily does not proscribe incriminating statements elicited from another. Compulsion upon the person asserting it is an important element of the privilege, and "prohibition of compelling a man... to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him," Holt v. United States, 218 U.S. 245, 252-253 (1910) (emphasis added). It is extortion of information from the accused himself that offends our sense of justice.
[p329] In the case before us the ingredient of personal compulsion against an accused is lacking. The summons and the order of the District Court enforcing it are directed against the accountant. He, not the taxpayer, is the only one compelled to do anything. And the accountant makes no claim that he may tend to be incriminated by the production. Inquisitorial pressure or coercion against a potentially accused person, compelling her, against her will, to utter self-condemning words or produce incriminating documents is absent. In the present case, no "shadow of testimonial compulsion upon or enforced communication by the accused" is involved. Schmerber v. California, 384 U.S. 757, 765 (1966).
The divulgence of potentially incriminating evidence against petitioner is naturally unwelcome. But petitioner's distress would be no less if the divulgence came not from her accountant but from some other third party with whom she was connected and who possessed substantially equivalent knowledge of her business affairs. The basic complaint of petitioner stems from the fact of divulgence of the possibly incriminating information, not from the manner in which or the person from whom it was extracted. Yet such divulgence, where it does not result from coercion of the suspect herself, is a necessary part of the process of law enforcement and tax investigation.

## III

[p330] Petitioner's reliance on Boyd v. United States, 116 U.S. 616 (1886), is misplaced. In Boyd, the person asserting the privilege was in possession of the written statements in question. The Court in Boyd did hold that "any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime," violated the Fourth and Fifth Amendments. Id., at 630. That case did not, however, address or contemplate the divergence of ownership and possession, and petitioner concedes that court decisions applying Boyd have largely been in instances where possession and ownership conjoined, see, e.g., Hill v. Philpott, 445 F.2d 144 (CA7 1971); United States v. Judson, 322 F.2d 460, 63-2 USTC ¶ 9658 (CA9 1963). In Boyd, the production order was directed against the owner of the property who, by responding, would have been forced "to produce and authenticate any personal documents or effects that might incriminate him." United States v. White, 322 [p331] U.S., at 698. But we reiterate that in the instant case there was no enforced communication of any kind from any accused or potential accused.
Petitioner would, in effect, have us read Boyd to mark ownership, not possession, as the bounds of the privilege, despite the fact that possession bears the closest relationship to the personal compulsion forbidden by the Fifth Amendment. To tie the privilege against self-incrimination to a concept of ownership would be to draw a meaningless line. It would hold here that the business records which petitioner actually owned would be protected in the hands of her accountant, while business information communicated to her accountant by letter and conversations in which the accountant took notes, in addition to the accountant's own workpapers and photocopies of petitioner's records, would not be subject to a claim of privilege since title rested in the accountant. Such a holding would thus place unnecessary emphasis on the form of communication to an accountant and accountant's own working methods, while diverting the inquiry from the basic purposes of the Fifth Amendment's protections.
Other precedents debated by the parties lend no support to petitioner's contention that ownership of documents should determine the availability of the privilege. [p332] In Perlman v. United States, 247 U.S. 7 (1918), the Court held the privilege unavailable to a party seeking to suppress the admission of incriminating documents and exhibits before a grand jury. The movant's expectations of privacy in the exhibits had, according to the Court, been destroyed when he voluntarily surrendered the exhibits as evidence in a patent infringement case he had earlier brought in Federal District Court. Petitioner's claims of ownership failed to overcome this fact. The Court noted pertinently:
   "But Perlman insists that he owned the exhibits and appears to contend that his ownership exempted them from any use by the Government without his consent. The extent of the insistence is rather elusive of measurement. It seems to be that the owner of property must be considered as having a constructive possession of it wherever it [p333] be and in whosoever hands it be, and it is always, therefore, in a kind of asylum of constitutional privilege. And to be of avail the contention must be pushed to this extreme. It is opposed, however, by all the cited cases. They, as we have said, make the criterion of immunity not the ownership of property but the 'physical or moral compulsion' exerted." Id., at 15.
Petitioner argues, nevertheless, that grave prejudice will result from a denial of her claim to equate ownership and the scope of the privilege. She alleges that "[i]f the IRS is able to reach her records the instant those records leave her hands and are deposited in the hands of her retainer whom she has hired for a special purpose then the meaning of the privilege is lost." That is not, however, the import of today's decision. We do indeed believe that actual possession of documents bears the most significant relationship to Fifth Amendment protections against governmental compulsions upon the individual accused of crime. Yet situations may well arise where constructive possession is so clear or the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions upon the accused substantially intact." But this is not the [p334] case before us. Here there was no mere fleeting divestment of possession: the records had been given to this accountant regularly since 1955 and remained in his continuous possession until the summer of 1969 when the summons was issued. Moreover, the accountant himself worked neither in petitioner's office nor as her employee. The length of his possession of petitioner's records and his independent status confirm the belief that petitioner's divestment of possession was of such a [p335] character as to disqualify her entirely as an object of any impermissible Fifth Amendment compulsion.

## IV

Petitioner further argues that the confidential nature of the accountant-client relationship and her resulting expectation of privacy in delivering the records protect her, under the Fourth and Fifth Amendments, from their production. Although not in itself controlling, we note that no confidential accountant-client privilege exists under federal law, and no state-created privilege has been recognized in federal cases, Falsone v. United States, 205 F.2d 734 (CA5 1963), cert. denied, 346 U.S. 864; Gariepy v. United States, 189 F.2d 459, 463-464 (CA6 1951); Himmelfarb v. United States, 175 F.2d 924, 939 (CA9 1949), cert. denied, 338 U.S. 860; Olender v. United States, 210 F.2d 795, 806 (CA9 1954). Nor is there justification for such a privilege where records relevant to income tax returns are involved in a criminal investigation or prosecution. In Boyd, a pre-income tax case, the Court spoke of protection of privacy, 116 U.S., at 630, but there can be little expectation of privacy where records are handed to an accountant, knowing that mandatory disclosure of much of the information therein is required in an income tax return. What information is not disclosed is largely in the accountant's discretion, not petitioner's. Indeed, the accountant himself risks criminal prosecution if he willfully assists in the preparation of a false return. 26 U.S.C. § 7206 (2). His own need for self-protection would often require the right to disclose the information given him. Petitioner seeks extensions of constitutional protections against self-incrimination in the very situation where obligations of disclosure exist and under a system largely dependent upon honest self-reporting even to survive. Accordingly, petitioner here [p336] cannot reasonably claim, either for Fourth or Fifth Amendment purposes, an expectation of protected privacy or confidentiality.

## V

The criterion for Fifth Amendment immunity remains not the ownership of property but the "'physical or moral compulsion' exerted." Perlman, 247 U.S., at 15. We hold today that no Fourth or Fifth Amendment claim can prevail where, as in this case, there exists no legitimate expectation of privacy and no semblance of governmental compulsion against the person of the accused. It is important, in applying constitutional principles, to interpret them in light of the fundamental interests of personal liberty they were meant to serve. Respect for these principles is eroded when they leap their proper bounds to interfere with the legitimate interest of society in enforcement of its laws and collection of the revenues.
The judgment of the Court of Appeals is
Affirmed.

## Notes

* ↑ SEC. 7402. JURISDICTION OF DISTRICT COURTS. ..... "(b) To enforce summons. If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data." SEC. 7604. ENFORCEMENT OF SUMMONS. "(a) Jurisdiction of district court. If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, records, or other data, the United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data."
* ↑ App. 59-60.
* ↑ The District Court held that "[s]ince, at the time the summons was served, the taxpayer, Lillian V. Couch, was not in possession of the books, records and documents described in the summons, she may not assert any Fifth Amendment privilege against self-incrimination as a bar to the enforcement of the summons." App. 6, 11. The opinion of the District Court (WD Va.) is not reported.
* ↑ The Court of Appeals also noted that the answer to petitioner's Fifth Amendment contentions lay in the fact that "the records were not in the intervenor's [taxpayer's] possession but were in the custody of her accountant," 449 F.2d 141, 143 (1971).
* ↑ The summons, which is printed in full in App. 59-60, was issued on August 18, 1969, pursuant to 26 U.S.C. § 7602, which provides: EXAMINATION OF BOOKS AND WITNESSES. "For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized— "(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry; "(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and "(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry."
* ↑ Petitioner also claimed that enforcement of the summons would violate her Fourth Amendment right to be secure from unreasonable searches and seizures. We agree with the Government, however, that "this claim is not further articulated and does not appear to be independent of her Fifth Amendment argument." Brief for United States 21-22. See part IV, infra.
* ↑ There is clearly the joint civil and possibly criminal investigatory purpose in the instant case, see supra, at 324.
* ↑ Donaldson cautioned only that the summons be issued in good faith and prior to a recommendation for criminal prosecution. 400 U.S., at 536. Neither of those conditions is successfully challenged here.
* ↑ Technically the order to produce the records was directed to petitioner's attorney since, after the summons was served upon the accountant, he ignored it and surrendered the records to the attorney. But constitutional rights obviously cannot be enlarged by this kind of action. The rights and obligations of the parties became fixed when the summons was served, and the transfer did not alter them. See United States v. Zakutansky, 401 F.2d 68, 72 (CA7 1968), cert. denied, 393 U.S. 1021 (1969); United States v. Lyons, 442 F.2d 1144 (CA1 1971).
* ↑ A later Court commenting on the Boyd privilege noted that "the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity." United States v. White, 322 U.S. 694, 699 (1944). (Emphasis added.)
* ↑ Brief for Petitioner 13-14.
* ↑ See also United States v. Cohen, 388 F.2d 464, 468 (CA9 1967), where the court, in upholding the right of a possessor, nonowner, to assert the privilege, noted that "it is possession of papers sought by the government, not ownership, which sets the stage for exercise of the governmental compulsion which it is the purpose of the privilege to prohibit." Though the instant case concerns the scope of the privilege for an owner, nonpossessor, the Ninth Circuit's linkage of possession to the purposes served by the privilege was appropriate. We do not, of course, decide what qualifies as rightful possession enabling the possessor to assert the privilege.
* ↑ Brief for Petitioner 11-17.
* ↑ Burdeau v. McDowell, 256 U.S. 465 (1921), also debated and cited in the briefs, held that the Government may retain for use against their owner in a criminal proceeding incriminating documents which were stolen by private individuals, without any governmental knowledge or complicity, and turned over to the Government. The Court, in denying the owner's privilege, alluded primarily to the absence of any governmental compulsion against the accused, the precise factor considered in the instant case. It is true, as petitioner argues, that the case turns somewhat on a discussion of governmental versus private compulsion and invasion, but it is equally true that the Court in Burdeau failed to find any impermissible public compulsion on the owner absent his possession: "We know of no constitutional principle which requires the Government to surrender the papers under such circumstances. Had it learned that such incriminatory papers, tending to show a violation of federal law, were in the hands of a person other than the accused, it having had no part in wrongfully obtaining them, we know of no reason why a subpoena might not issue for the production of the papers as evidence. Such production would require no unreasonable search or seizure, nor would it amount to compelling the accused to testify against himself." Id., at 476. In Johnson v. United States, 228 U.S. 457 (1913), the Court held that the books and records of a bankrupt transferred to a trustee in bankruptcy could be used as evidence against the bankrupt in a prosecution for concealing money from the trustee. Unlike the instant case, both title and possession passed in that transfer and the records were, in one sense, "published" by it. But the Court, in denying the privilege, recognized that the transfer also succeeded in removing the important element of personal compulsion against the accused, id., at 459, just as, in this case, the nature of the divestment of possession did.
* ↑ Brief for Petitioner 13. At oral argument petitioner raised a similar concern: "The Government goes so far as to contend, I believe, with their theory that any time it is out of your actual physical possession it is subject to subpoena.... If I were helping you across Constitution Avenue by carrying your briefcase, the Government holds that they could hand me a summons in the middle of Constitution Avenue and seize your documents to use against you in a criminal trial." Tr. of Oral Arg. 14.
* ↑ See, e.g., Schwimmer v. United States, 232 F.2d 855 (CA8 1956), which involved an attorney's partially successful motion to quash two subpoenas duces tecum issued in a grand jury proceeding against a corporation where the attorney had stored his office files. See also United States v. Guterma, 272 F.2d 344 (CA2 1959), concerning the storage of taxpayer's personal records in a safe in offices of a corporation which the taxpayer had served as Chairman of the Board. Only the taxpayer and an indicted co-defendant knew the combination of the safe, and the corporation had no access to it. The Court of Appeals upheld the taxpayer's assertion of Fifth Amendment privilege as to his personal records in the face of a grand jury subpoena directed to the corporation. Petitioner argues these cases support her position (Brief for Petitioner 14-15); the Government argues they can be distinguished from the instant case as involving mere custodial safekeeping of records, not disclosure of their information to a third person (Brief for United States 21). We refrain from judging the merits of such distinctions today.
* ↑ Tr. of Oral Arg. 31.
* ↑ As we noted, supra, at 324, his status is that of an independent contractor. He actually did "very little work for the petitioner," had many other clients, and was compensated by the job. Tr. of Oral Arg. 8. This is a significant point. The Government noted in oral argument: "In the Internal Revenue Service practice, so long as the taxpayer has retained possession of the records and they are being used only by his full-time employees or others on the taxpayer's premises, without the taxpayer having relinquished possession and control of the records, we ordinarily in those situations issue the summons to the taxpayer, because it is the taxpayer who has the dominion over the records and the authority to return the summons. And if the taxpayer chooses to plead the privilege against self-incrimination, that is up to the taxpayer." Tr. of Oral Arg. 30.
* ↑ See n. 6, supra. The summons satisfied the requirements in United States v. Powell, 379 U.S. 48, 57-58 (1964), and, as explained above, the necessary expectation of privacy to launch a valid Fourth Amendment claim does not exist. Katz v. United States, 389 U.S. 347 (1967).
* ↑ The dissenting opinion of MR. JUSTICE MARSHALL implies that the Court has created a "bright-line rule that no constitutional right of petitioner is violated by enforcing a summons of papers not in her possession." Post, at 344. This implication does not reflect accurately the position of the Court. Indeed, it ignores the language of the Court, supra, at 333-335, and nn. 15-18. We do indeed attach constitutional importance to possession, but only because of its close relationship to those personal compulsions and intrusions which the Fifth Amendment forbids. Yet, contrary to any intimation in the dissent, we do not adopt any per se rule. We also decline to conjecture broadly on the significance of possession in cases and circumstances not before this Court.