United States District Court, D. Utah
MEMORANDUM AND ORDER
FREDERIC BLOCK, SENIOR UNITED STATES DISTRICT JUDGE.
moves to suppress accounting and other bookkeeping files of
Koerber's companies, which the government acquired from
Koerber's former employee, Forrest Allen. The Court
denies the motion based on the inevitable discovery doctrine.
following facts are taken from Koerber's brief and the
record. On April 4, 2007, the Internal Revenue Service
(“IRS”) issued summonses to Koerber and his
companies seeking, among other things, those companies'
business records, including “any and all business
bookkeeping records, ” “any and all business
financial records, ” and “any and all financial
statements, bookkeeper's and/or accountant's work
papers used in the preparation of state and/or federal tax
returns.” IRS Summons, Koerber I, Docket No. 463, Ex.
alleges he resisted these summons on the basis that they were
“overbroad and therefore legally ineffective.”
Def.'s Br. at 6. Koerber does not point to any evidence
that he made this argument beyond his present say-so, nor
does he provide a legal argument explaining why he believes
the summons were overbroad. Nor is there any evidence that he
formally resisted the summons, for example, by moving to
quash the subpoena. Regardless, the IRS was able to subpoena
the files from a former employee of Koerber, Forrest Allen,
who took digital copies of the disputed files with him when
he left Koerber's employment.
than ten years later, and after the files were introduced
without objection at his first trial, Koerber now argues that
the search and seizure of these files violated the Fourth
Amendment because Allen did not have permission to take the
files. Therefore, Koerber argues that the government could
not rely on Allen's production of the files because
Koerber retained a reasonable expectation of privacy in the
files that Allen did not have authority to waive. He seeks
suppression of those files under the exclusionary rule.
exclusionary rule does not apply if the evidence inevitably
would have been discovered through other means. See Nix
v. Williams, 467 U.S. 431, 444 (1984); United States
v. Christy, 739 F.3d 534, 540 (10th Cir. 2014). The
government bears the burden of proving by a preponderance of
the evidence that the exception applies. Christy, 739 F.3d at
540. The Court holds the disputed files here would have been
inevitably discovered pursuant to the original summonses.
United States v. Souza, 223 F.3d 1197 (10th Cir.
2000), the Tenth Circuit held that the exception applies in
situations where the police had probable cause and took some
steps to obtain a search warrant. 223 F.3d at 1203. It laid
out four factors to consider: “(1) the extent to which
the warrant process has been completed at the time those
seeking the warrant learned of the search; (2) the strength
of the showing of probable cause at the time the search
occurred; (3) whether a warrant ultimately was obtained,
albeit after the illegal entry; and (4) evidence that law
enforcement agents ‘jumped the gun' because they
lacked confidence in their showing of probable cause and
wanted to force the issue by creating a fait accompli.”
Id. at 1204 (quoting United States v.
Cabassa, 62 F.3d 470, 473-74 (2d Cir. 1995) (internal
the government was relying on an IRS summons, rather than
applying for a search warrant. An IRS summons functions much
like a subpoena, and other courts, including some in this
circuit, have applied the inevitable discovery doctrine in
the context of subpoenas. See, e.g., United States v.
Yazzie, 998 F.Supp.2d 1044, 1116-17 (D.N.M. 2014);
see also United States v. Eng, 997 F.2d 987, 992-93
(2d Cir. 1993) (holding that because a bank would have
responded to a subpoena, an illegal search was cured).
summons requires significantly less evidence than a search
warrant. See Becker v. Kroll, 494 F.3d 904, 916
(10th Cir. 2007) (“an investigatory or administrative
subpoena is not subject to the same probable cause
requirements as a search warrant”). The fact that the
summons “was issued administratively with potential
criminal ramifications does not change the analysis.”
Id. at 917. The government need only show that the
investigation was conducted for a legitimate purpose, that
the summons was relevant to that purpose, that the IRS did
not already have the information, and that it followed the
appropriate administrative steps as required by the Internal
Revenue Code. Jewell v. United States, 749 F.3d
1295, 1297-98 (10th Cir. 2014) (citing United States v.
Powell, 379 U.S. 48, 57-58 (1964)).
in light of the allegations against Koerber, there was no
question but that the investigation was conducted for a
legitimate purpose and that the summonses were relevant to
that purpose. Koerber does not allege that the IRS already
had the information or that it did not follow the appropriate
administrative steps. Accordingly, the Souza factors support
a finding of inevitable discovery: The summons to
Koerber's companies were already issued, they were valid,
and there is no evidence that the IRS was trying to end-run
Koerber's Fourth Amendment rights.
there any question that the summons covered the disputed
files. Koerber admits as much: “Mr. Koerber and his
attorneys had previously received subpoenas from the IRS
requesting all business records and files, which would have
included the files at issue here . . . .” Def.'s
Br. at 5 (emphasis added). Therefore, even based on the facts
alleged by Koerber, the government has met its burden to show
inevitable discovery based on these summonses and their
applicability to the disputed files.
Koerber's alleged argument that the summonses were
overbroad have any chance of succeeding. The government's
burden in enforcing an IRS summons has been described as
“slight . . . because the statute must be read broadly
in order to ensure that the enforcement powers of the IRS are
not unduly restricted.” United States v. Balanced
Fin. Mgmt., 769 F.2d 1440, 1443 (10th Cir. 1985). To
overcome the presumption that a summons is proper, the
defendant has a “heavy” burden and “must
allege specific facts and evidence to support his
allegations.” Sugarloaf Funding LLC v. United
States Dept. of Treasury, 584 F.3d 340, 343 (1st Cir.
2009). To defeat an overbreadth challenge, the summons need
only describe the requested records with enough specificity,
United States v. Dauphin Deposit Trust Co., 385 F.2d
129, 131 (3d Cir. 1967), and be relevant to the
investigation, United States v. Southwestern Bank &
Trust Co., 693 F.2d 994, 995-96 (10th Cir. 1982).
has not alleged a single fact to support his overbreadth
argument. The summons clearly identified the bookkeeping
records, and those records were directly relevant to the
investigation into Koerber's alleged tax evasion.
Therefore, Koerber's overbreadth argument would have had
no chance of success.
the government would have inevitably obtained the disputed
records by compelling their production based on the IRS
summonses, the exclusionary rule ...