Harry S. STONEHILL and Robert P. Brooks, Appellants, v. UNITED STATES of America, Appellee, 405 F.2d 738

BELLONI, District Judge. This appeal is from an interlocutory order of the United States District Court for the Central District of California which denied appellants’ motion to suppress evidence in a civil action brought by the United States of America. The United States, in January, 1965, filed a complaint seeking foreclosure of Federal tax liens securing Federal income tax liabilities outstanding against Harry S. Stonehill and Robert P. Brooks for 1958 through 1961, inclusive.

Taxpayers (appellants Stonehill and Brooks) moved to suppress certain evidence they claimed had been obtained in violation of taxpayers’ Constitutional rights. The trial court held a hearing on the motion, later entering its written order and opinion denying the motion to suppress. United States v. Stonehill, 274 F.Supp. 420. Subsequently, the trial court granted a certificate under 28 U.S.C. § 1292(b); taxpayers then petitioned for and were granted permission from this court to appeal from the order. The question before this court is whether the district court erred in denying taxpayers’ motion to suppress.

Taxpayers contend that the documents in question should have been suppressed as evidence even if seized by foreign officers in a foreign country, because the searches and seizures were illegal by United States Constitutional standards (in violation of the Fourth Amendment). Taxpayers contend also that the district' court erred in concluding that the action of United States agents did not constitute United States “participation” in the illegal searches and seizures. We find no merit to these contentions and affirm the district court’s order.

STATEMENT OF FACTS Taxpayers’ motion seeks to suppress numerous documents seized in the Philippines during raids which began March 3, 1962. Better understanding of the issues, however, requires that we examine events which took place over a period of several years. During the tax years in question, taxpayers Stone-hill and Brooks were American citizens residing in the Philippines. The tax investigation on which the assessments are based had its inception in the Philippine Islands.

Stonehill and Brooks began business together in the Philippines shortly after World War II and developed a substantial number of businesses, including the United States Tobacco Company. They were officers of, or controlled, many successful corporations. As the district court so aptly stated: “So eminently successful were they in ascending the ladder of finance that they brought themselves and their activities to the attention of the Philippine authorities and to the attention of the United States Internal Revenue Service.” 274 F.Supp. at p. 421.

Robert Chandler was attached to the United States Embassy in Manila as the Internal Revenue Service representative for the Far East. His duties included auditing returns of and collecting taxes from American taxpayers residing in his territory. In 1960, the income tax return of Harry S. Stonehill for the calendar year 1958 was sent to Chandler for audit. Due to lack of personnel, the audit was not conducted. Nothing further was done.

Menhart Spielman had been vice-president of United States Tobacco Company until his discharge by Stonehill and Brooks; before leaving the tobacco company he copied and photographed certain documents and records which he felt disclosed wrongdoing on the part of taxpayers. In December, 1961, Spielman contacted Robert Hawley, a Federal Bureau of Investigation agent attached to the American Embassy in Manila, who in turn directed him to Chandler.

After Chandler met Spielman on December 18, 1961, he concluded that Spiel-man’s information indicated possible tax liabilities due from the taxpayers and that the information might be of interest to the Philippine authorities. On December 22, 1961, Chandler relayed Spielman’s information to his office in Washington, D. C., also telling them that any tax investigation was beyond his office’s capabilities, and recommending that additional agents be assigned. Chandler spent considerable time with Spielman collecting information, repeatedly asking his headquarters for assistance.

Chandler and Hawley finally persuaded Spielman to meet with the Philippine authorities; on January 27, 1962, Spiel-man met with Colonel Lukban, who was in charge of the Philippine National Bureau of Investigation. For some time prior to this meeting, the Philippine National Bureau of Investigation (NBI) had been investigating Stonehill and Brooks, gathering evidence which they hoped to use in deporting Stonehill and Brooks from the Philippines as undesirable aliens. Philippine authorities, as part of their deportation investigation, decided to raid the taxpayers’ business premises.

Upon learning of the proposed raids, Robert Chandler objected, requesting that such action not be taken or that it at least be postponed. His request was disregarded. Philippine authorities began planning the raids, and because Chandler and Col. Lukban were friends, some of the numerous preparation meetings were held in Chandler’s home. Because Spielman was afraid to go to NBI headquarters, meetings between Spiel-man and the NBI were also held in Chandler’s home.

Chandler did not assist in planning the raids, although at one NBI meeting when Chandler was present he did ask if the Army-Navy Club was included on the list of premises to be raided. The information furnished Chandler and the NBI by Spielman was the basis for this question. Chandler suggested including this building; when the raids were conducted it was included. Under the supervision of Col. Lukban and Jose Diokno (the then-Secretary of Justice for the Republic of the Philippines), the NBI made all the preparations for these raids.

In the process of relaying information from Spielman, a diagram prepared by Chandler of one premises and a memorandum prepared by him on another inadvertently fell into the hands of the NBI. They were not intended as directions to the NBI. The night before the raids Chandler was called to Col. Lukban’s home. A large number of NBI personnel were also present. Chandler was shown a paper described as a warrant and was asked for his comment. He said he knew nothing about search warrants but that the copy appeared to be all right. At this point Chandler made his inquiry about the Army-Navy Club.

After the Philippine authorities decided to conduct the raids, but prior to the raids, Chandler secured permission from Col. Lukban to examine and copy records seized in the raids. However, it is clear that the purpose of the raids was to uncover violations of Philippine law, not to obtain evidence for the United States agents. The raids on the taxpayers and their corporations commenced Saturday, March 3, 1962, at about 1:00 P.M., at which time the taxpayers were arrested and 200 NBI agents simultaneously raided the business offices of the taxpayers and some 17 different corporations.

The NBI took possession of the various corporate premises and began to gather the voluminous documents and records seized in the raids, a process which took from several hours at some locations to several days at others. When the raids started, Robert Chandler and two agents from his office went to a small temporary structure owned by the NBI across the street from NBI headquarters to wait for the conclusion of the raids, hoping to obtain from the NBI any records which were' seized.

They remained there all afternoon, and at about 5:00 P.M. read in the evening paper that the taxpayers had been arrested and their various businesses raided, which lead them to believe the raids were completed. About 10:00 P.M. that evening, Col. Lukban asked them to come to his office. There they saw a large volume of records and documents which had been seized in the raids and requested permission to copy or photograph some of them. The request was denied, Col.

Lukban indicating that the seized records and documents would not be made available until they had been examined, catalogued, and inventoried by the NBI. The next day arrangements were made to permit Robert Chandler to photograph or copy some of the documents. While Chandler and his associates were in Col. Lukban’s office, an NBI agent requested the assistance of an accountant to determine which records, from a large number seized in a warehouse of the United States Tobacco Company, were significant; there were too many to bring to NBI headquarters and the NBI agent did not know what to pick up. Col.

Lukban asked Chandler to go to the warehouse to help the NBI agent. Chandler agreed. Chandler and two associates went to the warehouse, pointed out the books and records which appeared to be the most significant from an accounting point of view, and left. They made no detailed examination of the records, took no records with them, and did not know what was done with these records after they left.

Chandler drove from the warehouse to the main office of the United States Tobacco Company, several blocks away, and asked the NBI agent in charge if they had found the record storage room Spiel-man had told both Chandler and the NBI about. The NBI agent did not seem to know about it and asked Chandler to point it out. Chandler stepped into the office, pointed out generally the location of the record storage area, and left. He was only on the premises about five minutes and did not enter the room or examine any records.

On March 5, 1962, some, but not all, of the seized records were made available to United States agents for the first time. After an examination of these records, the Internal Revenue Service opened a fraud investigation of the taxpayers, ultimately resulting in the jeopardy assessments which are the basis of this suit. OPINION After a lengthy hearing on the motion to suppress these documents, the district judge entered his written opinion (274 F.Supp. 420), which found as facts most of the foregoing. We are bound by his findings unless they are clearly erroneous.

We believe, as a result of our review of the ten-volume transcript and exhibits, that the foregoing narrative is a fair statement of the events. It includes some facts not found by the district judge, but contains nothing in conflict with them. Indeed, we find no conflict between the district' judge’s findings and the record, although appellants take emphatic objection to some of the findings and believe other events are material and constitute evidence of sufficient involvement to prove that the United States agents instigated the raids. We do not agree.

The raids were found to have been illegal searches and seizures by the Philippine Supreme Court as violating a

section of the Philippine Constitution which is identical to our Fourth Amendment. The search warrants were defective because no specific offense had been alleged. 274 F.Supp. at p. 424. If the raids had been conducted by United States agents, they would have been illegal under our Constitution. Neither the Fourth Amendment of the United States Constitution nor the exclusionary rule of evidence, designed to deter Federal officers from violating the Fourth Amendment, is applicable to the acts of foreign officials. Brulay v. United States, 383 F.2d 345 (9th Cir. 1967).

The reasoning for this is: 1) all relevant evidence is admissible unless there is an exclusionary rule; 2) even the Fourth Amendment does not by itself provide for exclusion of evidence unlawfully obtained; 3) the Supreme Court, in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), in order to force United States officers to abide by the Fourth Amendment, created the exclusionary rule; 4) there is nothing our courts can do that will require foreign officers to abide by our Constitution.

Thus, the Fourth Amendment could apply to raids by foreign officials only if Federal agents so substantially participated in the raids so as to convert them into joint ventures between the United States and the foreign officials. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927); Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949); Symons v. United States, 178 F.2d 615 (9th Cir. 1949); Sloane v. United States, 47 F.2d 889 (10th Cir. 1931). Prior to the decisions of the Supreme Court in Mapp v.

Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961) and Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), wherein the Supreme Court held that the Fourth Amendment was incorporated in the Fourteenth Amendment and therefore applicable to State agencies, it was pertinent to inquire whether Federal officials so substantially participated in a raid by State officials so as to convert the raid into a joint venture between State and Federal officials and therefore subject to the provisions of the Fourth Amendment.

The essentials of that inquiry are equally pertinent in determining whether Federal officials so substantially participated in a raid by foreign officials as to convert that raid into a joint venture between the United States and the foreign government and therefore subject to the provisions and sanctions of the Fourth Amendment. In all reported Federal cases holding a search to be a Federal search, the participation by Federal officers has been far more extensive than here. The Supreme Court, in Byars v.

United States, supra, held that a State search and seizure was the act of the United States and violated the Fourth Amendment because of the substantial participation in the search and seizure by a Federal agent. State officers, on their way to execute a search warrant, asked a Federal prohibition agent (Adams) to accompany them. Upon arriving at the premises to be searched, each of the officers, including Adams, was assigned a room to search and the search was conducted under the authority of the State warrant.

Adams searched the kitchen and found some stamps (counterfeit strip stamps of the type used on whiskey bottled in bond), and a State officer also found stamps in another room. Adams kept the stamps he found, and, because they did not represent a violation of any State laws, the State officer turned over the other stamps to Adams. The court found that Adams participated as a Federal enforcement officer on the chance that something would be disclosed of official interest to him as such agent.

This substantial participation by Adams was found to be under color of his Federal office and the search, in substance and effect, a joint operation of the local and Federal officers.

The court (273 U.S. at p. 33, 47 S.Ct. at 250) stated: “The effect is the same as though he had engaged in the undertaking as one exclusively his own.” Emphasizing the fact that mere participation by a Federal officer would not render a search a Federal undertaking, the court, at p. 32, at p. 249 of 47 S.Ct. stated: “ * * * the court must be vigilant to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods.” The court also noted, at p. 33, at p. 250 of 47 S.Ct.: “Similar questions have been presented in a variety of forms * * * each of them rests, as the present case does, upon its own peculiar facts * * *." The acts of participation,.must be such that the search and seizure can be said to be a joint operation or joint venture between the United States and the State or foreign government.

Whether the search does become a joint venture can be determined only by a comparison of what the Federal agent did in the search and seizure with the totality of acts done in the search and seizure. In .Byars, the court concluded that the only reason a Federal agent was present at the time of the raid was to select that evidence which was subsequently introduced in the Federal prosecution. Further, the Federal agent selected certain evidence according to the sole criterion of its use in a Federal prosecution, and he kept exclusive possession of this evidence at all times.

Subsequently, the Supreme Court reaffirmed the Byars doctrine in Lustig v. United States, supra. In Lustig, Secret Service Agent Greene had reason to suspect two defendants of violations of the counterfeiting statutes, but, upon looking through the keyhole of the suspects’ room, could see no evidence of any violation and reported this fact to the local police. Greene also told the local police that he was “confident that something was going on.” The local police secured arrest warrants alleging violations of State law and went to the hotel room to make the arrests.

The defendants were not in the room; the police searched the room and discovered evidence which indicated counterfeiting of currency. The local police then called Greene, who had remained at police headquarters because he was “curious to see what they would find.” Greene went to the hotel room and examined the items discovered by the local police. Upon returning, the defendants were arrested and searched, with Greene inspecting the items found in their pockets. Some of the articles seized were given to Greene before he left the room, and all were eventually turned over to him.

On these facts the Supreme Court found participation on the part of the Federal agent, stating: “So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it.” 338 U.S. at p. 79, 69 S.Ct. at p. 1374. The court was of the opinion that Greene’s activities were not severable and were therefore part of the search carried on in the room. The court in Lustig held that to differentiate in participation from the beginning and joining a search before it had run its course would be to draw too fine a line in the application of the Byars doctrine.

Greene went to the hotel room hoping to find evidence which could be used in a Federal prosecution, he and the State officers concerned themselves especially with turning up evidence of violations of the Federal counterfeiting laws, and the articles seized were either taken by or were turned over to the Federal agent during the search. Greene clearly participated in his capacity as a Federal agent and was searching for possible Federal violations. Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), is another case where the action of a Federal agent was held to be Federal participation.

In Corngold, a package was delivered to an airline in Los Angeles for shipment to New York. A Federal customs agent suspected the package contained contraband and so informed an airline employee. The customs agent instigated and participated in the opening and inspecting of the package without a search warrant. A divided court held this to be an illegal search and seizure (because of the failure to obtain a search warrant), finding that the customs agent and the airline employee had been engaged in a joint operation and the Federal participation would prevent the evidence from being admissible in Federal court.

This court, relying on the Byars doctrine, stated: “When a federal agent participates in such a joint endeavor ‘the effect is the same as though he had engaged in the undertaking as one exclusively his own.’ ” 367 F.2d at p. 6. In Corngold, the airline employee would not have conducted a search but for the insistence of the Federal agent, and even then he did so reluctantly. The above cases, by applying the exclusionary rule, found participation by Federal agents. The Byars doctrine clearly requires that the participation question be determined by a thorough examination of the facts of each case. Brulay v.

United States, 383 F.2d 345 (9th Cir. 1967), is a recent opinion of this court which was discussed and relied upon by the trial court here. Mexican authorities arrested Brulay and seized evidence. The Tijuana municipal policemen had stopped Brulay because the car he was driving looked heavy in the rear, and arrested him because he appeared to be nervous. After arresting him, they discovered 300 pounds of amphetamine tablets in the trunk.

Although United States Customs had previously alerted Mexican Federal Police to the defendant’s activities, the court found no United States participation in the arrest or seizure, and, further, that the actions of the Mexican officers had not been instigated by United States Customs or Narcotics officials. The court held that the seized tablets were properly admitted. In Birdsell v. United States, 346 F.2d 775 (5th Cir. 1965), cert. denied 382 U.S. 963, 86 S.Ct. 449, 15 L.Ed.2d 366, Birdsell objected to evidence allegedly obtained in violation of the Fourth Amendment.

The arrest and seizure were made in Mexico by Mexican officials, without participation by United States agents. A Texas deputy sheriff who happened to be passing through town did assist the Mexican authorities by acting as an interpreter. The court held the evidence to have been properly admitted, stating: “* * * the Fourth Amendment does not apply to arrests and searches made by Mexican officials in Mexico for violation of Mexican law, even if the persons arrested are Americans and American police officers gave information leading to the arrest and search.” 346 F.2d at p. 782.

In a footnote in the Birdsell opinion, the court indicated that if Federal officials induced foreign police to engage in conduct which shocked the conscience, then a Federal court might, in the exercise of its supervisory powers, refuse to allow the prosecution to enjoy the fruits of such action. The court noted that Birdsell was not such a case; neither is the instant case. In Sloane v. United States, supra, a Federal prohibition agent gave information obtained from an informant (concerning the location of a still) to a deputy sheriff.

State officers obtained a search warrant, searched the premises, and seized evidence incriminating Sloane. The evidence was later turned over to the Federal agent for prosecution in Federal court. Sloane’s motion to suppress the evidence was denied. The court stated that a Federal agent must not be permitted to do indirectly that which he cannot do directly, and thus circumvent the provisions of the Fourth Amendment against unreasonable search and seizure.

However, in Sloane the court held that the Federal agent neither ordered nor directed the search, that there was no Federal participation, and the motion to suppress was properly denied. Other cases dealing with the “participation” question deserve brief mention. In Shurman v. United States, 219 F.2d 282 (5th Cir. 1955), a Federal narcotics officer informed a State officer he believed Shurman’s car contained narcotics. He did not request any action on the part of the State officer, merely gave the information.

The State officer arrested Shurman, found narcotics in the car, and ultimately the case was turned over to Federal authorities for prosecution. The court, although finding that the search was illegal for lack of a warrant, admitted the evidence because no participation by Federal officers, or such cooperation between Federal and State authorities as to prevent the use of the evidence, was shown. Clearly, the giving of information, without more, does not amount to participation or make a later search a joint venture. In Symons v.

United States, supra, Federal agents who arrived several hours after an initial search and seizure by State officers and took charge of the evidence (narcotics), were held not to have participated in the arrest or in the search and seizure. The casual presence of a Federal officer at the scene of a search is not sufficient to make the Federal officer a participant under, the Byars doctrine. United States v. Brown, 151 F.Supp. 441 (E.D.Va.1957). In Brown, a Federal officer inadvertently arrived at the scene of a State search, having come to the address on another matter. Also see Myers v.

United States, 49 F.2d 230 (4th Cir. 1931), and United States v. Evans, 179 F.Supp. 834 (D.Md.1960). The facts of the case at hand require it to be placed in the category of cases holding that Federal officers did not undertake or unlawfully participate in an unconstitutional search and seizure. The principal factors leading to that conclusion are: 1) No United States agent selected any evidence for use in a United States investigation or prosecution — nor for that matter did any Philippine officer on their behalf.

On the contrary, the raids were instigated and planned by Philippine officers before United States agents became involved; the sole purpose of the raids was to obtain evidence for Philippine proceedings. 2) All activities of United States agents in connection with the raids took place before the raids commenced or after their termination. 3) Only after the raids were completed and the documents catalogued were the United States agents given permission to copy documents, if any, which might be of interest to them. 4) There is no evidence that any United States agents were attempting to shortcircuit the Fourth Amendment rights of the taxpayers, as proscribed in the language of the Byars case (“by circuitous and indirect methods.”) 5) The United States agents clearly objected to the raids, asking that the raids either not take place or at least that they be postponed. 6) When the United States agents made Spielman’s information available to the Philippine authorities, they were not requesting any action whatsoever, much less instigating an unlawful search.

It should also be noted that the search was illegal due to defective search warrants; which, properly prepared, might have satisfied Constitutional requirements. Since United States officials did not participate in the unlawful search, but rather obtained the contested evidence in a lawful manner, the denial of the motion to suppress was proper and the interlocutory order of the District Court is affirmed. . Pursuant to 28 U.S.C. § 1292(b). .

Our finding that there was no participation by Federal agents makes it unnecessary to decide other issues raised, i. e., the taxpayers’ standing as to suppression of corporate documents, whether the evidence could be used for purposes of impeachment, and whether the exclusionary rule applies to civil cases. . For example, Secretary Diokno flew to Hong Kong on February 11, 1962 and saw an aide of Attorney General Kennedy, a Mr. Seigenthaler.

At this meeting, Secretary Diokno requested help of the United States in investigating the taxpayers; specifically, he requested that the services of some tobacco experts be made available to him in investigating the activity of the taxpayers’ Philippine tobacco companies. No help was requested of Secretary Diokno by the United States at this meeting, or by Mr. Chandler at any meeting. Further, Secretary Diokno has admitted that the help he requested of the United States was never provided.

Around the time of the Hong Kong trip, Secretary Diokno decided to have the taxpayers arrested and their companies’ business premises raided in connection with the NBI’s investigation. Appellants also rely on a copy of a memorandum sent January 10, 1962 from the Revenue Service representative in Manila to the office of International Operations in Washington, D. C., as indicating U. S. participation in the March raids. (Defendants’ Ex. E. ) This document only reaffirms the U. S. position prior to the raids of being interested but not yet ready to take any action. We do not think that either the visit to Mr.

Kennedy’s assistant nor the impeaching document aids appellants’ position.