At page 429 Limiting government search based on consent and withdrawal30 citing caseswhen the basis for search or seizure is consent, the government must conform to the limitations placed upon the right granted to search, seize or retain the papers or effects.
- Jeffrey Lynn Aday v. State, No. 05-14-01593-CR (Tex. App.—Dallas May 6, 2015).published([S]ince [appellee’s] action was unilateral and contained no agreement as to duration, it was implicitly limited by [appellee’s] right to withdraw his consent and invoke his Fourth Amendment rights.)
- United States v. Blue Diamond Coal Co., Scotia Coal Co., 667 F.2d 510 (6th Cir. 1982).published (when the basis for search or seizure is consent, the government must conform to the limitations placed upon the right granted to search, seize or retain the papers or effects.)
- State v. McDonnell, 291 A.3d 776 (Md. 2023).published In reaching this conclusion, the Court relied on Ponder, 444 F.2d at 818 , and Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977), cases in which the Fifth Circuit concluded that, when the government has obtained consent to seize and sear…
- United States v. Campbell, 76 M.J. 644 (A.F.C.C.A. 2017).published At that point there was a valid consent to search, which carries with it the right to examine and photocopy.”); Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977) (“This withdrawal [of consent] . . . does not affect the validity of [the a…
- Langbord v. United States Dep't of the Treasury, 832 F.3d 170 (3d Cir. 2016).published Citing Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977), the Court reasoned that the Langbords’ Fourth Amendment pos-sessory rights to the ten Double Eagles were not vitiated by the Government’s claim of ownership.
- Leal, Jonathan Albert, No. PD-0836-15 (Tex. Crim. App. July 7, 2015).publishedIn a post-9/11 world, a person's Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977) submission to administrative airport screening has (citizen's withdrawal of consent and reinvocation of little to do with his or her consent, implied [*16…
- Ruth Pin Rogmad v. State, No. 02-14-00075-CR (Tex. App.—Fort Worth May 18, 2015).unpublishedMason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977).
- Langbord v. United States Dep't of the Treasury, 645 F. Supp. 2d 381 (E.D. Pa. 2009).publishedUnited States v. Messina, 507 F.2d 73, 75 (2d Cir.1974) (where the complainant admitted to having sold stolen sweaters, handed over the remaining sweaters to the police saying, “[i]f you want these sweaters, you can have them,” and indicat…
- State v. Ballou, 186 P.3d 696 (Idaho Ct. App. 2008).publishedUnited States v. Ward, 576 F.2d 243, 244 (9th Cir.1978); Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir.1977); State v. Thorpe, 141 Idaho 151, 154 , 106 P.3d 477, 480 (Ct.App.2004).
- United States v. Nicholas J. McWeeney, 454 F.3d 1030 (9th Cir. 2006).published See id. at 252 , 111 S.Ct. 1801 ("A suspect may of course delimit as he chooses the scope of the search to which he consents."); United States v. Ward, 576 F.2d 243, 244 (9th Cir.1978) ("[S]ince [appellee's] action was unilateral and conta…
Show 18 more citing cases
- United States v. McWeeney, No. 05-10349 (9th Cir. July 20, 2006).publishedSee id. at 252 (“A suspect may of course delimit as he chooses the scope of the search to which he con- sents.”); United States v. Ward, 576 F.2d 243, 244 (9th Cir. 1978) (“[S]ince [appellee’s] action was unilateral and con- tained no agre…
- State v. Thorpe, 106 P.3d 477 (Idaho Ct. App. 2004).publishedUnited States v. Ward, 576 F.2d 243, 244 (9th Cir.1978); Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir.1977).
- State v. Staatz, 978 P.2d 881 (Idaho Ct. App. 1999).published United States v. Ward, 576 F.2d 243, 244 (9th Cir.1978); Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir.1977).
- United States v. Ho, 94 F.3d 932 (5th Cir. 1996).published (holding that revocation of consent does not require government to return copies of business records taken before revocation)
- Richard A. Vaughn, Dds, P.C. v. Frederick G. Baldwin, 950 F.2d 331 (6th Cir. 1991).publishedIn granting Agent Baldwin’s motion to dismiss, the district court suggested that applying the Fourth Amendment to cases such as this one would merely make it easier for taxpayers to insulate their records from the IRS through an “extrajudi…
- United States v. Walter George Strickland, Jr., 902 F.2d 937 (11th Cir. 1990).publishedBlake, 888 F.2d at 800 ; Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir.1977). 4 In justifying a consensual search, the government bears the burden of establishing that the search was conducted within the purview of the consent received.
- United States v. Margaret Carolyn Coburn, United States of Am. v. Margaret Carolyn Coburn, 876 F.2d 372 (5th Cir. 1989).publishedMason v. Pulliam, 557 F.2d 426, 429 (5th Cir.1977).
- United States v. Richard J. Leary, & F.L. Kleinberg & Co., 846 F.2d 592 (10th Cir. 1988).publishedEqually important is the fact that “[w]hen the basis for a search or seizure is consent, the government must conform to the limitations placed upon the right granted to search, seize or retain the papers or effects.” Mason v. Pulliam, 557…
- United States v. McBean, 697 F. Supp. 495 (S.D. Ga. 1987).published ([w]hen the basis for the search or seizure is consent, the government must conform to the limitations placed upon the right granted)
- Watts v. Kroczynski, 636 F. Supp. 792 (W.D. La. 1986).publishedSee Linn v. Chivatero, 714 F.2d 1278, 1281 (5th Cir.1983); Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir.1977); Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir.1975) (citing Rule 41(e) of the Federal Rules of Criminal Procedure and the “gener…
- Linn v. Chivatero, 714 F.2d 1278 (5th Cir. 1983).published Lord v. Kelley, 223 F.Supp. 684, 689 (D.Mass.1963); see also Richey, supra, 515 F.2d at 1244 ; Mason v. Pulliam, 402 F.Supp. 978, 981 (N.D.Ga.1975), aff’d, 557 F.2d 426, 428 (5th Cir.1977). 3 Anomalous jurisdiction is exercised with “cauti…
- City of Warwick v. Robalewski, 385 A.2d 669 (R.I. 1978).published(where basis for search or seizure is consent, government must conform to limitations placed on consent and must cease when person revokes that consent)
- Jonathan Albert Leal v. State, 452 S.W.3d 14 (Tex. App.—Houston [14th Dist.] 2014).published See Mason v. Pulliam, 557 F.2d 426, 428 (5th Cir.1977). .
- United States v. Daniel Alfaro, 935 F.2d 64 (5th Cir. 1991).published(unilateral grant of consent limited by right to withdraw same)
- United States v. Harris, 716 F. Supp. 1470 (M.D. Ga. 1989).publishedSee Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir.1977).
- United States v. Oswald G. Blake, Leonard Eason, 888 F.2d 795 (11th Cir. 1989).published
- United States v. Grant, 476 F. Supp. 400 (S.D. Fla. 1979).published
- United States v. Lutcza, 76 M.J. 698 (A.F.C.C.A. 2017).published
At page 428 Affirming equitable jurisdiction over withdrawn consent to search26 citing casesholding that "[n]othing in Schneckloth suggests ... that a consent which waives Fourth Amendment rights cannot be limited, qualified or withdrawn
- State v. Gerald P. Mitchell, 2018 WI 84, 914 N.W.2d 151.published(stating that nothing in Schneckloth prevents consent from being withdrawn)
- Jonathan Albert Leal v. State, 452 S.W.3d 14 (Tex. App.—Houston [14th Dist.] 2014).published See Mason v. Pulliam, 557 F.2d 426, 428 (5th Cir.1977). .
- Haley Diana Forsyth v. State, 438 S.W.3d 216 (Tex. App.—Eastland 2014).publishedMason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir. 1977).
- People v. Nadal, 48 V.I. 212 (2007).published(a consent which waives Fourth Amendment rights may be limited, qualified, or withdrawn)
- United States v. Garcia, No. 01-51080 (5th Cir. June 7, 2002).unpublishedId. at 506-07 ; United States v. McSween, 53 F.3d 684, 688 (5th Cir. 1995); United States v. Petty, 601 F.2d 883, 899-90 (5th Cir. 1979); Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir. 1977); see also United States v. Gonzalez-Basulto, 8…
- In Re Grand Jury Proceedings, 115 F.3d 1240 (5th Cir. 1997).published(affirming the district court’s exercise and discussion of anomalous jurisdiction)
- Burton v. United States, 657 A.2d 741 (D.C. 1994).published (holding that "[n]othing in Schneckloth suggests ... that a consent which waives Fourth Amendment rights cannot be limited, qualified or withdrawn)
- United States v. David Carter, 985 F.2d 1095 (D.C. Cir. 1993).published The constitutional right to withdraw one's consent to a search, see, e.g., Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir.1977), would be of little value if the very fact of choosing to exercise that right could serve as any part of the b…
- United States v. William Frank Norfleet, 972 F.2d 343 (4th Cir. 1992).unpublishedI want you to stop now," or Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir. 1977), where the suspect, through counsel, unequivocally demanded the return of papers initially taken with his consent.
- Richard A. Vaughn, Dds, P.C. v. Frederick G. Baldwin, 950 F.2d 331 (6th Cir. 1991).publishedIn granting Agent Baldwin’s motion to dismiss, the district court suggested that applying the Fourth Amendment to cases such as this one would merely make it easier for taxpayers to insulate their records from the IRS through an “extrajudi…
Show 14 more citing cases
- Averhart v. United States, 901 F.2d 1540 (11th Cir. 1990).published Additionally, federal courts under limited circumstances may exercise equitable or anomalous jurisdiction over agency forfeiture decisions. 4 United States v. Chapman, 559 F.2d 402, 406 (5th Cir.1977); Mason v. Pulliam, 557 F.2d 426, 428 (…
- No. 89-7682 Non-Argument Calendar, 901 F.2d 1540 (11th Cir. 1990).published Cf. United States v. Edwards, 368 F.2d 722, 724 (4th Cir.1966); Cotonificio Bustese, S.A. v. Morgenthau, 121 F.2d 884 (D.C.Cir.1941); Clow v. Nelson, 579 F.Supp. 981, 983-84 (W.D.N.Y.1984). 8 Additionally, federal courts under limited circ…
- State v. Reagan, 546 A.2d 839 (Conn. 1988).publishedA consent to enter or to search, once given, can be withdrawn or limited at any time prior to the completion of the search; United States v. Dyer, 784 F.2d 812, 816 (7th Cir. 1986); Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir. 1977); 3…
- State v. Reagan, 528 A.2d 846 (Conn. App. Ct. 1987).published (wherein the defendant stated “[t]he search is over. I am calling off the search)
- 13 Fed. R. Evid. Serv. 365, 14 Fed. R. Evid. Serv. 1362 United States of Am. v. Manuel Frank Rubio, United States of Am. v. Ronald Harrison Elledge, United States of Am. v. Donald Duane Smith, United States of Am. v. John Palomar, United States of Am. v. Alan David Passaro, United States of Am. v. Bert Samuel Stefanson, 727 F.2d 786 (9th Cir. 1984).publishedWhile it is clear that the government must conform to limitations placed upon the right granted to search, Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir.1977); United States v. Griffin, 530 F.2d 739, 744 (7th Cir.1976), Smith has cited n…
- Linn v. Chivatero, 714 F.2d 1278 (5th Cir. 1983).published Lord v. Kelley, 223 F.Supp. 684, 689 (D.Mass.1963); see also Richey, supra, 515 F.2d at 1244 ; Mason v. Pulliam, 402 F.Supp. 978, 981 (N.D.Ga.1975), aff’d, 557 F.2d 426, 428 (5th Cir.1977). 3 Anomalous jurisdiction is exercised with “cauti…
- United States v. Rubio, 727 F.2d 786 (9th Cir. 1983).publishedWhile it is clear that the government must conform' to limitations placed upon the right granted to search, Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir.1977); United States v. Griffin, 530 F.2d 739, 744 (7th Cir.1976), Smith has cited…
- McCallum v. State, 608 S.W.2d 222 (Tex. Crim. App. 1980).published See May v. State, 582 S.W.2d 848 (Tex.Cr.App.1979); Mason v. Pulliam, 557 F.2d 426, 428-429 (5th Cir. 1977).
- United States v. Hall, 507 F. Supp. 242 (M.D. Fla. 1980).publishedCf. Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir. 1977).
- May v. State, 582 S.W.2d 848 (Tex. Crim. App. 1979).publishedSearches and Seizures § 62, p. 818; Honig v. U. S., 208 F.2d 916, 919 (8 Cir.1958); Davis v. California, 341 F.2d 982, 985, n. 8 (9 Cir. 1965); U. S. v. Dichiarinte, 445 F.2d 126, 129, n. 3 (7 Cir.1971); Mason v. Pulliam, 557 F.2d 426, 428…
- Gates v. Texas Deparment of Prot. & Regulatory Servs., 537 F.3d 404 (5th Cir. 2008).published
- Severance v. Patterson, 566 F.3d 490 (5th Cir. 2009).published
- United States v. Melvin Wayne Hall, 565 F.2d 917 (5th Cir. 1978).published
- Loredana Bertolotti Gore v. State, 451 S.W.3d 182 (Tex. App.—Houston [1st Dist.] 2014).published
At page 426 CLARK, Circuit Judge: On December 4, 1974, Internal Revenue Service Special Agent Ralph Pulliam requested that Harve D. Mason allow Pulliam to remove and…1 citing case
- Wofford v. Safeway Stores, Inc., 78 F.R.D. 460 (N.D. Cal. 1978).publishedThere would appear to be no other reason to accede to the notion that a class action “belongs to no one so much as to the plaintiff’s lawyer,” Satterwhite v. City of Greenville, Tex., supra, 557 F.2d at 426 (Gee, J., dissenting), and the p…
Other citing cases
- Limonja v. Commonwealth, 383 S.E.2d 476 (Va. Ct. App. 1989).published
- Limonja v. Commonwealth, 375 S.E.2d 12 (Va. Ct. App. 1988).published
- Jones v. Berry, 524 F. Supp. 645 (D. Ariz. 1981).published
- United States v. Jess Harlan White, 617 F.2d 1131 (5th Cir. 1980).published
v.
Ralph J. PULLIAM (Special Agent/Intelligence Division, IRS) and Jim Kelly (Supervisor/Intelligence Division, IRS), Respondents-Appellants
Reporter's Syllabus editorial summary, not part of the Court's opinion
John W. Stokes, U. S. Atty., William D. Mallard, Jr., Asst. U. S. Atty., Atlanta, Ga., Scott P. Crampton, Asst. Atty. Gen., Robert E. Lindsay, Michael J. Roach, Attys. Tax Div., Gilbert E. Andrews, Act. Chief, App. Sec., U. S. Dept. of Justice, Washington, D. C., for respondents-appellants.
Stanley F. Birch, Jr., Greer, Sartain, & Carey, Gainesville, Ga., for petitioners-appellees.
On Appeal from the United States District Court for the Northern District of Georgia.
Before GODBOLD and CLARK, Circuit Judges, and HOFFMAN,* District Judge.
CLARK, Circuit Judge:
Lead Opinion
On December 4, 1974, Internal Revenue Service Special Agent Ralph Pulliam requested that Harve D. Mason allow Pulliam to remove and examine certain of Mason’s[*428] business records. Mason granted the request and Pulliam took the records into his possession that day. On December 11,1974, Mason’s attorney demanded the immediate return of all materials submitted to the agent the week before. Special Agent Pulliam refused and this action was brought.[1] The district court ordered that the materials and all copies made subsequent to the demand for return be delivered to Mason. We affirm.
The district court properly concluded that the doctrine of “anomalous jurisdiction” conferred power to consider an order to return a citizen’s property when the consent that is the sole justification for the government’s possession of the property is withdrawn. The judgment appealed is in part affirmed on the basis of this well-reasoned treatment of the anomalous jurisdiction doctrine. Mason v. Pulliam, 402 F.Supp. 978 (N.D.Ga.1975). One additional issue raised by the agents on appeal needs consideration. It is the position of the agents that when Mason voluntarily permitted Pulliam to take possession of his papers for the purpose of examining and copying, he forever waived his Fourth Amendment rights and any underlying reasonable expectations of privacy. The agents contend that “a reasonable expectation of privacy can only be lost once, and requiring the government to return the taxpayers records instantly on demand would serve only to frustrate a legitimate government investigation without in any way furthering the purposes of the Fourth Amendment.” This argument is erroneous.
In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Supreme Court made an extensive explication of the concept of “consent” in the Fourth Amendment context. Schneckloth teaches that, in essence, consent is assent without coercion; and, to determine whether consent is free, the totality of circumstances surrounding the request for and agreement to the search must be examined. Though the giving of consent to make a search may be seen as waiving a person’s Fourth Amendment rights, id. at 235, 93 S.Ct. at 2051, such a waiver should not be governed under the strict standards applied to waiver of other constitutional rights. Id. at 246, 93 S.Ct. at 2057.
Nothing in Schneckloth suggests however that a consent which waives Fourth Amendment rights cannot be limited, qualified or withdrawn. Other courts have indicated that a Fourth Amendment consent can be effectively limited. In United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971) the court ruled in general terms that consensual searches are reasonable only if kept within the bounds of the actual consent given. The defendant in that criminal prosecution had consented to a search for narcotics. After the search had commenced, the government officers started examining certain of the defendant’s papers. At that point, the defendant stated “[t]he search is over. I am calling off the search.” Noting the obvious unlikelihood of finding narcotics within private papers, the court held that the officers had unequivocally gone beyond the scope of the consent and that any items found in this perusal of private papers were not admissible. The court did not consider the effectiveness of defendant’s revocation, but instead relied solely on the fact that the officers had gone beyond the scope of the consent originally given.[2] United States v. Bily, 406 F.Supp. 726 (E.D.Pa.1975) involved the search of a defendant’s house and garage for pornographic films. After an investigation of[*429] approximately two hours in which certain films were discovered, the defendant stated “[tjhat’s enough. I want you to stop.” This demand “was a revocation of consent that took immediate effect.” Id. at 729. Only the seizures of film preceding this revocation were held valid.[3]
When the basis for a search or seizure is consent, the government must conform to the limitations placed upon the fight granted to search, seize or retain the papers or effects. Since Mason’s action was unilateral and contained no agreement as to duration it was implicitly limited by Mason’s right to withdraw his consent and reinvoke his Fourth Amendment rights. This withdrawal and reinvocation does not affect the validity of Pulliam’s actions prior to the time he received notice that his right to retain Mason’s papers was gone. The district court correctly refused to require the return of copies made prior to the demand by Mason’s attorney.
Precedents concerned with the waiver and attempted reinvocation of Fifth Amendment protection which are urged by the agents are not apropos. When an accused takes the stand in a criminal trial, his “voluntary offer of testimony upon any fact is a waiver as to all other relevant facts because of the necessary connection between all. Any voluntary disclosure by the accused, except in the most unlikely situation, distorts their probative picture.” 8 Wigmore on Evidence § 2276 at 459-60 (3d Edition, 1940) (emphasis removed), cited with approval in United States v. Brannon, 546 F.2d 1242, 1246 (5th Cir. 1977). As Wigmore continued, 8 Wigmore, supra at 460. On the other hand, a taxpayer presented with the IRS request for consent to examine papers, is often unable to make a deliberate, advised decision whether to waive his Fourth Amendment rights. In further contradistinction to the testimony of an accused at trial, waiver and then reinvocation of Fourth Amendment rights, though presenting some possibility that the search will reveal only a partial and therefore inaccurate picture, is not accompanied by the urgent and perhaps irremediable need for a complete evidentiary presentation.
The accused has the choice [of whether to waive his Fifth Amendment rights] at the outset, unhurried and with full knowledge that all questions will relate to his incrimination ....
The trial context is both immediate and permanent in fixing the rights of both parties. A defendant’s actions are neither unilateral nor without a benefit to him. When he makes a deliberate choice to waive a right he gets the benefit of his action and cannot rue back his bargain in whole or in part. This is altogether different from the circumstances surrounding Mason’s agreement to Pulliam’s request. Mason gained no advantage. Pulliam suffered no detriment. If Pulliam could have demanded production then, he is in at least as good a position to demand it now with the added benefits of the partial examination he has made. The Supreme Court made clear in Schneckloth v. Bustamonte, supra, 412 U.S. at 241, 93 S.Ct. at 2055, that there is a “vast difference between those [Fifth and Sixth Amendment] rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment.” Just as different standards for waiver of those rights exist, different criteria for judging the effects of an attempted withdrawal of the waiver should also be used.
AFFIRMED.
Mason’s wife, Pat J. Mason, was also a named plaintiff. Jim Kelly, a supervisor of Special Agent Pulliam, was additionally made a defendant.
See generally United States v. Miller, 491 F.2d 638, 650 (5th Cir.), cert. denied, 419 U.S. 970, 95 S.Ct. 236, 42 L.Ed.2d 186 (1974), where the court considered the argument that consent had been limited, but found that the evidence demonstrated the limitations were withdrawn by the defendant’s later actions; United States v. Griffin, 530 F.2d 739, 744 (7th Cir. 1976), where the court averred that limitations on consent were valid but found the materials not to have been acquired by officers acting outside these limitations.
In United States v. Young, 471 F.2d 109 (7th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.2d 156 (1973), a search was stopped when the defendant indicated he was withdrawing his consent. Although the court described the effort as an “attempted rescission” the holding of the case was that the “attempt” did not retroactively render the original consent invalid or preclude the use of incriminating evidence discovered before the withdrawal was announced.
Concurrence
concurring specially:
As the author of the opinion in Glotzbach v. Klavans, 196 F.Supp. 685 (E.D.Va., 1961),[*430] some explanation is- due. In that case I held that a waiver once made remained in effect until the examination of the books and records was complete. As Judge Clark so ably notes, the recent authorities clearly indicate that a waiver may be withdrawn under certain circumstances but, to the portion that was waived, the party waiving his right cannot retract. If Glotzbach v. Klavans, supra, were before me today, I would not permit the completion of the examination.