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ANDRESEN v. MARYLAND

June 29, 1976

ANDRESEN
v.
MARYLAND



CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND

Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens.

Author: Blackmun

[ 427 U.S. Page 465]

 MR. JUSTICE BLACKMUN delivered the opinion of the Court.

This case presents the issue whether the introduction into evidence of a person's business records, seized during a search of his offices, violates the Fifth Amendment's command that "[n]o person... shall be compelled in any criminal case to be a witness against himself." We also must determine whether the particular searches and seizures here were "unreasonable" and thus violated the prohibition of the Fourth Amendment.

I

In early 1972, a Bi-County Fraud Unit, acting under the joint auspices of the State's Attorneys' Offices of Montgomery and Prince George's Counties, Md., began an investigation of real estate settlement activities in the Washington, D.C., area. At the time, petitioner Andresen was an attorney who, as a sole practitioner, specialized in real estate settlements in Montgomery County. During the Fraud Unit's investigation, his activities came under scrutiny, particularly in connection with a transaction involving Lot 13T in the Potomac Woods subdivision of Montgomery County. The investigation, which included interviews with the purchaser, the mortgage holder, and other lienholders of Lot 13T, as well as an examination of county land records, disclosed that petitioner, acting as settlement attorney, had defrauded Standard-Young Associates, the purchaser of Lot 13T. Petitioner had represented that the property was free of liens and that, accordingly, no title insurance was necessary, when in fact, he knew that there were two outstanding liens on the property. In addition, investigators

[ 427 U.S. Page 466]

     learned that the lienholders, by threatening to foreclose their liens, had forced a halt to the purchaser's construction on the property. When Standard-Young had confronted petitioner with this information, he responded by issuing, as an agent of a title insurance company, a title policy guaranteeing clear title to the property. By this action, petitioner also defrauded that insurance company by requiring it to pay the outstanding liens.

The investigators, concluding that there was probable cause to believe that petitioner had committed the state crime of false pretenses, see Md. Ann. Code, Art. 27, ยง 140 (1976), against Standard-Young, applied for warrants to search petitioner's law office and the separate office of Mount Vernon Development Corporation, of which petitioner was incorporator, sole shareholder, resident agent, and director. The application sought permission to search for specified documents pertaining to the sale and conveyance of Lot 13T. A judge of the Sixth Judicial Circuit of Montgomery County concluded that there was probable cause and issued the warrants.

The searches of the two offices were conducted simultaneously during daylight hours on October 31, 1972.*fn1 Petitioner was present during the search of his law office and was free to move about. Counsel for him was present during the latter half of the search. Between 2% and 3% of the files in the office were seized. A single investigator, in the presence of a police officer, conducted

[ 427 U.S. Page 467]

     the search of Mount Vernon Development Corporation. This search, taking about four hours, resulted in the seizure of less than 5% of the corporation's files.

Petitioner eventually was charged, partly by information and partly by indictment, with the crime of false pretenses, based on his misrepresentation to Standard-Young concerning Lot 13T, and with fraudulent misappropriation by a fiduciary, based on similar false claims made to three home purchasers. Before trial began, petitioner moved to suppress the seized documents. The trial court held a full suppression hearing. At the hearing, the State returned to petitioner 45 of the 52 items taken from the offices of the corporation. The trial court suppressed six other corporation items on the ground that there was no connection between them and the crimes charged. The net result was that the only item seized from the corporation's offices that was not returned by the State or suppressed was a single file labeled "Potomac Woods General." In addition, the State returned to petitioner seven of the 28 items seized from his law office, and the trial court suppressed four other law office items based on its determination that there was no connection between them and the crime charged.

With respect to all the items not suppressed or returned, the trial court ruled that admitting them into evidence would not violate the Fifth and Fourth Amendments. It reasoned that the searches and seizures did not force petitioner to be a witness against himself because he had not been required to produce the seized documents, nor would he be compelled to authenticate them. Moreover, the search warrants were based on probable cause, and the documents not returned or suppressed were either directly related to Lot 13T, and therefore within the express language of the warrants, or properly seized and otherwise admissible to show a pattern of

[ 427 U.S. Page 468]

     criminal conduct relevant to the charge concerning Lot 13T.

At trial, the State proved its case primarily by public land records and by records provided by the complaining purchasers, lienholders, and the title insurance company. It did introduce into evidence, however, a number of the seized items. Three documents from the "Potomac Woods General" file, seized during the search of petitioner's corporation, were admitted. These were notes in the handwriting of an employee who used them to prepare abstracts in the course of his duties as a title searcher and law clerk. The notes concerned deeds of trust affecting the Potomac Woods subdivision and related to the transaction involving Lot 13T.*fn2 Five items seized from petitioner's law office were also admitted. One contained information relating to the transactions with one of the defrauded home buyers. The second was a file partially devoted to the Lot 13T transaction; among the documents were settlement statements, the deed conveying the property to Standard-Young Associates, and the original and a copy of a notice to the buyer about releases of liens. The third item was a file devoted exclusively to Lot 13T. The fourth item consisted of a copy of a deed of trust, dated March 27, 1972, from the seller of certain lots in the Potomac Woods subdivision to a lienholder.*fn3 The fifth item contained drafts of

[ 427 U.S. Page 469]

     documents and memoranda written in petitioner's handwriting.

After a trial by jury, petitioner was found guilty upon five counts of false pretenses and three counts of fraudulent misappropriation by a fiduciary. He was sentenced to eight concurrent two-year prison terms.

On appeal to the Court of Special Appeals of Maryland, four of the five false-pretenses counts were reversed because the indictment had failed to allege intent to defraud, a necessary element of the state offense. Only the count pertaining to Standard-Young's purchase of Lot 13T remained. With respect to this count of false pretenses and the three counts of misappropriation by a fiduciary, the Court of Special Appeals rejected petitioner's Fourth and Fifth Amendment Claims.*fn4 Specifically, it held that the warrants were supported by probable cause, that they did not authorize a general search in violation of the Fourth Amendment, and that the items admitted into evidence against petitioner at trial were within the scope of the warrants or were otherwise properly seized. It agreed with the trial court that the search had not violated petitioner's Fifth Amendment rights because petitioner had not been compelled to do anything. 24 Md. App. 128, 331 A. 2d 78 (1975).

[ 427 U.S. Page 470]

     We granted certiorari limited to the Fourth and Fifth Amendment issues. 423 U.S. 822 (1975).*fn5

II

The Fifth Amendment, made applicable to the States by the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 8 (1964), provides that "[n]o person... shall be compelled in any criminal case to be a witness against himself." As the Court often has noted, the development of this protection was in part a response to certain historical practices, such as ecclesiastical inquisitions and the proceedings of the Star Chamber, "which placed a premium on compelling subjects of the investigation to admit guilt from their own lips." Michigan v. Tucker, 417 U.S. 433, 440 (1974). See generally L. Levy, Origins of the Fifth Amendment (1968). The "historic function" of the privilege has been to protect a "'natural individual from compulsory incrimination through his

[ 427 U.S. Page 471]

     own testimony or personal records.'" Bellis v. United States, 417 U.S. 85, 89-90 (1974), quoting from United States v. White, 322 U.S. 694, 701 (1944).

There is no question that the records seized from petitioner's offices and introduced against him were incriminating. Moreover, it is undisputed that some of these business records contain statements made by petitioner. Cf. United States v. Mara, 410 U.S. 19, 21-22 (1973); United States v. Dionisio, 410 U.S. 1 (1973); Gilbert v. California, 388 U.S. 263, 266-267 (1967); United States v. Wade, 388 U.S. 218 (1967); and Schmerber v. California, 384 U.S. 757 (1966). The question, therefore, is whether the seizure of these business records, and their admission into evidence at his trial, compelled petitioner to testify against himself in violation of the Fifth Amendment. This question may be said to have been reserved in Warden v. Hayden, 387 U.S. 294, 302-303 (1967), and it was adverted to in United States v. Miller, 425 U.S. 435, 441 n. 3 (1976).

Petitioner contends that "the Fifth Amendment prohibition against compulsory self-incrimination applies as well to personal business papers seized from his offices as it does to the same papers being required to be produced under a subpoena." Brief for Petitioner 9. He bases his argument, naturally, on dicta in a number of cases which imply, or state, that the search for and seizure of a person's private papers violate the privilege against self-incrimination. Thus, in Boyd v. United States, 116 U.S. 616, 633 (1886), the Court said: "[W]e have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself." And in Hale v. Henkel, 201 U.S. 43, 76 (1906), it was observed that "the substance of the offense is the compulsory production of private

[ 427 U.S. Page 472]

     papers, whether under a search warrant or a subpoena duces tecum, against which the person... is entitled to protection."

We do not agree, however, that these broad statements compel suppression of this petitioner's business records as a violation of the Fifth Amendment. In the very recent case of Fisher v. United States, 425 U.S. 391 (1976), the Court held that an attorney's production, pursuant to a lawful summons, of his client's tax records in his hands did not violate the Fifth Amendment privilege of the taxpayer "because enforcement against a taxpayer's lawyer would not 'compel' the taxpayer to do anything -- and certainly would not compel him to be a 'witness' against himself." Id., at 397. We recognized that the continued validity of the broad statements contained in some of the Court's earlier cases had been discredited by later opinions. Id., at 407-409. In those earlier cases, the legal predicate for the inadmissibility of the evidence seized was a violation of the Fourth ...


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