In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐1398
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JASON T. PROCKNOW,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:13‐cr‐00053‐wmc‐1 — William M. Conley, Chief Judge.
____________________
ARGUED FEBRUARY 20, 2015 — DECIDED APRIL 27, 2015
____________________
Before RIPPLE, KANNE, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Defendant‐Appellant Jason Prock‐
now pleaded guilty to one count of theft of government
money, 18 U.S.C. § 641, and one count of aggravated identify
theft, id. § 1028(a)(1), related to his filing of fraudulent tax
returns claiming refunds. Procknow appeals the denial of his
motion to suppress, having reserved the right to do so in his
plea agreement. Procknow moved to suppress (1) evidence
obtained after police officers’ warrantless entry into his hotel
2 No. 14‐1398
room following his arrest in the hotel lobby, and (2) evidence
obtained by grand jury subpoena following the withdrawal
of Internal Revenue Service (“IRS”) administrative sum‐
monses requesting the same information. We affirm.
I. BACKGROUND
In connection with Procknow’s motion to suppress, a
magistrate judge conducted an evidentiary hearing, which
included the live testimony of seven witnesses, and recom‐
mended factual findings. After receiving objections from
both sides, the district court adopted the majority of the
magistrate’s recommended findings. Unless noted, the facts
set out below are derived from those adopted by the district
court.
On August 29, 2011, at about 5:45 p.m., a Wisconsin pro‐
bation officer phoned the Eagan, Minnesota, Police Depart‐
ment (“EPD”) requesting assistance in apprehending Prock‐
now, who had absconded approximately four months earlier
while serving a term of supervised release imposed by a
Wisconsin state court. Wisconsin authorities had received
information that Procknow and his girlfriend, Jennifer Van
Krevelen, might be staying at the Extended Stay America
hotel in Eagan. The EPD received Procknow’s photograph, a
description of his car, information about Procknow’s crimi‐
nal history—including a conviction for attempted murder—
and a warning that there was a high risk Procknow would
run from the police.
Shortly after receiving the probation officer’s phone call,
a squad of EPD officers traveled to the hotel and asked the
front‐desk clerk, Christopher Schuelke, if Procknow was
staying at the hotel. Schuelke could not locate Procknow’s
No. 14‐1398 3
name in the registry because Procknow—in violation of
Minnesota law and hotel policy—failed to register at the
time of check‐in. The officers asked about Van Krevelen, and
Schuelke responded that she was registered and staying in
room 315. Three officers went to room 315, where they saw a
magnetic sign on the door frame announcing, “PET
INSIDE.” The officers knocked on the door and received no
response, although they heard someone or something mov‐
ing inside the room. Based upon the sign on the door, the
officers assumed a dog was in the room making the noise
they heard.
The officers exited the hotel and returned to their cars.
Some of the officers had driven away when one of the offic‐
ers radioed that he thought he had just seen Procknow’s car
pull into the hotel lot. By the time all of the officers returned,
the EPD had run the Wisconsin license plate of the car and
confirmed that the car was registered to Procknow. Two of‐
ficers approached Procknow’s car and found Van Krevelen
standing alone.
Another officer, Matt Ondrey, approached the hotel’s
double entrance doors. As Ondrey opened the outer door, he
came face‐to‐face with Procknow. Ondrey asked Procknow
to come outside. Procknow instead wheeled and ran through
the hotel lobby; Ondrey pursued, ordering him to stop. As
Procknow neared an interior door, Ondrey fired his taser,
causing Procknow to lurch into the door and tumble onto
the ground. By the time Procknow had been handcuffed and
placed in a sitting position in the hotel lobby by Ondrey and
two other officers, Procknow had been tased three times,
4 No. 14‐1398
was bleeding from facial cuts, and had some newly‐broken
teeth.1 In a search incident to arrest, the officers obtained
from Procknow a credit card in the name of “Trevor Coon.”
Paramedics were called, and they took Procknow to the hos‐
pital, accompanied by Ondrey. The officers also arrested
Van Krevelen for harboring a fugitive.
EPD officer John Collins and two other officers remained
at the hotel. Collins looked through the windows of Prock‐
now’s car and saw a scanner or copier. He reviewed the
Wisconsin warrant and saw that Procknow’s conviction un‐
derlying the supervised‐release violation involved forgery.
Collins returned to the front desk, informed Schuelke that
both of the known occupants of room 315 had been arrested,
and asked Schuelke if hotel management wanted police as‐
sistance. Collins, then a 12‐year veteran of the EPD, knew
the hotel manager, Adam Scheler, and knew that hotel man‐
agement had asked the EPD to help eject any remaining oc‐
cupants in prior incidents at the hotel that resulted in arrests.
Schuelke phoned Scheler repeatedly for instructions. Scheler
told Schuelke that Van Krevelen and Procknow were no
longer welcome at the hotel, and their stay was being termi‐
nated. Scheler instructed Schuelke to pass this information
onto the EPD officers and ask the officers to collect the dog
1 Procknow filed a civil suit against the arresting officers in federal court
in Minnesota, alleging, inter alia, claims of excessive force. Among the
allegations levied by Procknow was that, during the course of the arrest,
one of the officers “dropped his knee onto the back of Procknow’s head,”
and said to Procknow—who was wearing a Green Bay Packers shirt—
“Welcome to Minnesota Vikings territory.” Procknow v. Curry, 26 F.
Supp. 3d 875, 879 (D. Minn. 2014). On March 3, 2015, a jury returned a
verdict in favor of the officers.
No. 14‐1398 5
believed to be in room 315 and ensure that there were no
other occupants in the room. (It is EPD policy for officers to
secure abandoned dogs and take them to Eagan’s animal
control center.)
Collins and the other two EPD officers re‐approached
room 315, knocked, and announced their presence. The of‐
ficers were armed with an animal catch pole (a four‐foot
pole with a steel noose at the end) and a carbine rifle, be‐
cause they had been told (apparently by Van Krevelen) that
the dog’s name was “Spike,” which led them to presume
that the dog might be “some type of … pitbull or larger,
somewhat ferocious dog.”2 No one answered the door, so
the officers used a hotel key card to enter the room. The of‐
ficers did not see any people, but they saw Spike—who
turned out to be a young, Labrador Retriever mix—walking
freely about the room. As one might expect from a dog com‐
prised in large part of Labrador, Spike had a friendly and
docile temperament. See Am. Kennel Club, The Labrador Re‐
triever, available at http://www.akc.org/dog‐breeds/labrador‐
retriever/ (last visited Apr. 10, 2015). Despite one officer’s con‐
fession to being “not a huge fan of dogs,” Spike’s amiable
demeanor won over the officers, which resulted in aban‐
donment of their plan to use the animal catch pole.
The officers entered the room and walked to the win‐
dows to ensure that there were no other occupants. In plain
2 Perhaps the officers were thinking of “Spike,” the fierce bulldog antag‐
onist from the Tom and Jerry television series. See Spike Bulldog, Tom and
Jerry Wikia, available at
http://tomandjerry.wikia.com/wiki/Spike_Bulldog (last visited Apr. 10,
2015).
6 No. 14‐1398
view, the officers saw an electric typewriter, “paperwork all
over the place,” and a credit card issued in the name of
“Smith.” The visible paperwork included financial forms
bearing a variety of names, dates of birth, and social security
numbers. One officer photographed the room, while another
found Spike’s leash. Taking only Spike and the leash, the of‐
ficers left the room and sealed it. The officers took Spike to
the city kennel, then applied for and received search war‐
rants for the hotel room and Procknow’s car.
In October 2011, an EPD detective met with IRS special
agent Steven Kuntsman, and turned over to Kuntsman all of
the documents and other evidence seized pursuant to the
search warrants. Among the documents and evidence seized
were blank IRS W‐2 forms, blank and partially completed
IRS tax forms, lists of businesses and their IRS employer
identification numbers, 21 prepaid debit cards (of the sort
issued for tax refunds) in the names of different people, plus
completed and blank application forms for an organization
called “Professional Legal and Economic Associates” (or
“PLEA”). The application forms ask for, among other things,
the applicant’s full name, date of birth, social security num‐
ber, driver’s license number, and prison release date.
In November 2011, Kuntsman applied for and received a
search warrant for a United Parcel Service (“UPS”) box in
Minneapolis, Minnesota, which had been listed on some of
the forms found in the hotel room. IRS agents tracked down
and interviewed a homeless man who Procknow had paid to
open the UPS box. In May 2012, Kuntsman sent administra‐
tive summonses to several financial institutions requesting
information about accounts held by Procknow and suspect‐
ed victims and aliases. During a one‐week period in June of
No. 14‐1398 7
2012, the following three events occurred in rapid succes‐
sion: a grand jury in the Western District of Wisconsin is‐
sued a subpoena to Procknow’s bank requesting all account
information for Procknow;3 Kuntsman retracted the admin‐
istrative summonses, returned all documents he had re‐
ceived pursuant to the summonses, and destroyed all copies
made of that evidence; and the U.S. Attorney’s Office for the
Western District of Wisconsin sent a letter to the IRS inform‐
ing the agency that the office was conducting an investiga‐
tion against Procknow and requesting that an IRS agent be
assigned to the investigation. On July 23, 2012, the IRS
agreed to the request, and on February 1, 2013, the IRS sent a
letter to the U.S. Attorney’s Office, transmitting the case and
officially recommending prosecution.
Later in 2013, the grand jury returned an indictment, and
then a superseding indictment, charging Procknow with 22
counts of making false claims against the United States, 18
U.S.C. § 287, five counts of theft of government money, id.
§ 641, and five counts of aggravated identify theft, id.
§ 1028(a)(1). According to the presentence report, these
charges related to Procknow’s scheme to fraudulently obtain
the personal identifying information of at least 40 individu‐
als and use the information to prepare and file fraudulent
tax returns and claim fraudulent refunds. Procknow created
“PLEA,” a sham organization, and mailed PLEA applica‐
tions to inmates across the country claiming to help “inmates
3 In April 2011, the same bank had alerted local and federal authorities of
suspicious activity in Procknow’s account. According to the bank, at
least five different federal tax refunds in three different names (not
“Procknow”) had been deposited into Procknow’s account.
8 No. 14‐1398
seek legal assistance for both criminal and civil actions,” and
offering inmates two free magazine subscriptions simply for
filling out and returning the application to Procknow’s UPS
box in Minneapolis. Using the personally identifiable infor‐
mation gleaned from the PLEA applications, Procknow filed
tax returns claiming fraudulent refunds totaling $124,302.00,
of which $42,646.78 was disbursed into Procknow’s personal
bank accounts or in the form of prepaid debit cards sent to
Procknow.
On September 13, 2013, Procknow moved to suppress all
evidence discovered as a result of EPD officers’ entry into
the Extended Stay hotel room, as well as evidence obtained
using the grand jury subpoenas. After a hearing, the magis‐
trate judge issued a report to the district judge pursuant to
28 U.S.C. § 636(b)(1)(B)–(C), proposing findings and recom‐
mending that the motion be denied. The district court
adopted the majority of the proposed findings and denied
the motion. Procknow thereafter entered a conditional guilty
plea to two counts of the superseding indictment, preserving
his right to appeal the denial of the motion to suppress. The
district court sentenced Procknow to three years of impris‐
onment and three years of supervised release, and ordered
restitution in the amount of $42,646.78.
II. DISCUSSION
Procknow contends that the district court erred in deny‐
ing his motion to suppress because the EPD’s initial warrant‐
less entry into Extended Stay room 315 violated his Fourth
No. 14‐1398 9
Amendment rights.4 Procknow argues that he had a legiti‐
mate expectation of privacy in the room because he was a
guest of Van Krevelen, the registered occupant of the room.
The government counters that Procknow did not have a le‐
gitimate expectation of privacy due to his status as an ab‐
sconder from supervised release who failed to register for
the hotel room, in contravention of Minnesota law and hotel
policy, in order to evade law enforcement.
The question of whether a search is reasonable pursuant
to the Fourth Amendment “turns in large part on the extent
of [a defendant]’s legitimate expectations of privacy.” United
States v. White, ‐‐‐ F.3d ‐‐‐‐, No. 13‐2943, 2015 WL 1323343, at
*3 (7th Cir. Mar. 25, 2015). We have recently had occasion to
consider the legitimate expectations of privacy of parolees,
which may be “significantly diminished” but not necessarily
eliminated by their conditions of parole. Id. at *4; see also
United States v. Walton, 763 F.3d 655, 660 (7th Cir. 2014) (“The
government rightly points out that Walton’s expectation of
privacy was reduced due to the fact he was a parolee. But
the Supreme Court has expressly declined to hold that a pa‐
rolee categorically has no expectation of privacy in any con‐
text.” (citing Samson v. California, 547 U.S. 843, 850 n.2
(2006))). However, we see no need to delve into the issue of
whether, as a general matter, a fugitive hiding from law en‐
4 The search warrant that EPD officers later obtained for the room was
based in large part upon materials the officers saw during their initial,
warrantless entry into the room. Procknow contends that the legality of
the warrants is dependent upon the legality of the officers’ initial, war‐
rantless entry into the room—a contention we accept for the purposes of
this appeal.
10 No. 14‐1398
forcement has any legitimate expectation of privacy in a ho‐
tel room in which he is staying as an unregistered guest.
This is because any legitimate expectation of privacy Prock‐
now may have had in the hotel room was extinguished
when he and Van Krevelen were justifiably ejected from the
hotel following their arrests and prior to the officers’ entry
into the room.
“A hotel room can clearly be the object of Fourth
Amendment protection as much as a home or an office.”
Hoffa v. United States, 385 U.S. 293, 301 (1966). “Fourth
Amendment protection, however, is dependent on the right
to private occupancy of the room since at the conclusion of
the rental period, the guest has completely lost his right to
use the room and any privacy associated with it.” United
States v. Akin, 562 F.2d 459, 464 (7th Cir. 1977) (quotation
omitted). “[C]ourts recognize that motel and hotel tenancy is
ordinarily short‐term. If the tenancy is terminated for legiti‐
mate reasons, the constitutional protection may vanish.” Fin‐
sel v. Cruppenink, 326 F.3d 903, 907 (7th Cir. 2003); see United
States v. Molsbarger, 551 F.3d 809, 811 (8th Cir. 2009) (“Justifi‐
able eviction terminates a hotel occupant’s reasonable expec‐
tation of privacy in the room.”); United States v. Allen, 106
F.3d 695, 699 (6th Cir. 1997) (“Once ‘a hotel guest’s rental pe‐
riod has expired or been lawfully terminated, the guest does
not have a legitimate expectation of privacy in the hotel
room.’” (quoting United States v. Rahme, 813 F.2d 31, 34 (2d
Cir. 1987))); United States v. Rambo, 789 F.2d 1289, 1295–96
(8th Cir. 1986) (holding that after a suspect was justifiably
ejected from his hotel room for disorderly behavior, he “no
longer had a reasonable expectation of privacy in the hotel
room”). “At the conclusion of the occupancy period, the ho‐
No. 14‐1398 11
tel manager may enter the room or consent to its search.”
Akin, 562 F.2d at 464.
The district court found that “hotel staff determined that
Procknow and Van Krevelen were no longer welcome and
terminated their stay.” We review this factual finding for
clear error. See White, 2015 WL 1323343, at *2. Procknow con‐
tends that the “evidence is equivocal” as to whether the ho‐
tel terminated their stay, noting that Schuelke, the front‐desk
clerk, contradicted the testimony of Scheler, the hotel man‐
ager, and the EPD officers on this point. However, both the
district judge and the magistrate judge thoroughly evaluated
the evidence presented at the suppression hearing, and we
find no basis to disturb the district court’s factual finding
that the hotel terminated Procknow’s and Van Krevelen’s
occupancy. See United States v. Terry, 572 F.3d 430, 434–35
(7th Cir. 2009).
Moreover, we find that the termination of their occupan‐
cy—“ejection,” as it is known in Minnesota, Minn. Stat.
§ 327.73—was justified pursuant to Minnesota law. Minneso‐
ta innkeepers may eject “a guest or other person who …
causes or threatens to cause a disturbance,” id.
§ 327.73(1)(a)(2), or “violates any federal, state, or local laws,
ordinances, or rules relating to the hotel,” id. §
327.73(1)(a)(5), or “violates a rule of the hotel that is clearly
and conspicuously posted at or near the front desk and on
the inside of the entrance door of every guest room,” id. §
327.73(1)(a)(6). Procknow’s decision to flee from Officer
Ondrey led to Procknow’s dramatic and violent arrest in the
hotel lobby, which undoubtedly caused a disturbance in
contravention of § 327.73(1)(a)(2) and hotel policy posted at
the front desk, printed on the registration card, and provid‐
12 No. 14‐1398
ed in a brochure given to all guests. Procknow’s failure to
register at check‐in and his failure to register his vehicle
likewise contravened Minnesota law, see id. § 327.10, as well
as posted hotel policy. Officers informed hotel staff of
Procknow’s and Van Krevelen’s arrests, thus informing hotel
staff that the duo was suspected of violating the law, in con‐
travention of § 327.73(1)(a)(5) and posted hotel policy. In
short, hotel management had ample grounds to eject Prock‐
now and Van Krevelen, and the officers were aware of this
fact.
Procknow contends that any ejection was not effective
under Minnesota law at the time that the officers entered
room 315 because the hotel had not yet refunded the ad‐
vance online‐payment Procknow and Van Krevelen made
for the room. See id. § 327.73(1)(b) (“If the guest has paid in
advance, the innkeeper shall tender to the guest any unused
portion of the advance payment at the time of removal.”).
The only published authority addressing the Minnesota inn‐
keepers’ statute in this context has ignored the refund provi‐
sion. See Rambo, 789 F.2d at 1295–96; State v. Perkins, 588
N.W.2d 491, 492–93 (Minn. 1999). Although the refund pro‐
vision likely would be relevant in a civil action brought by
Procknow or Van Krevelen against the hotel seeking a re‐
fund of the unused portion of the advance payment, we do
not find it relevant in the present context. There is no evi‐
dence that the EPD officers were aware that the room had
been prepaid (as opposed to payable at check‐out) or that
the hotel had failed to refund the credit card used to pay for
the room at the time the hotel terminated their occupancy.
Instead, the facts found by the district court adequately
demonstrate that the officers reasonably believed that Prock‐
now and Van Krevelen had been justifiably ejected, and this
No. 14‐1398 13
is sufficient for Fourth Amendment purposes. See United
States v. Richards, 741 F.3d 843, 850 (7th Cir. 2014) (“Even
without actual authority, however, a warrantless search may
still be permissible if consent is obtained from a third‐party
with apparent authority. When determining whether an in‐
dividual has apparent authority to consent, the court em‐
ploys an objective standard; officers may conduct a search
without a warrant if they ‘reasonably (though erroneously)
believe’ that the person consenting had authority over the
premises.” (citations omitted) (quoting Illinois v. Rodriguez,
497 U.S. 177, 186 (1990))).
Thus, Procknow’s and Van Krevelen’s justifiable ejection
(or at least the officers’ reasonable belief on this point) extin‐
guished any legitimate expectation of privacy Procknow
may have had in room 315, and authority (or apparent au‐
thority) to consent to entry into room 315 thereby reverted to
the hotel. See Molsbarger, 551 F.3d at 811; Finsel, 326 F.3d at
907; Rambo, 789 F.2d at 1295–96; Akin, 562 F.2d at 464. The
district court found that, after the ejection, hotel manage‐
ment asked the EPD officers to enter room 315 for the pur‐
pose of clearing the room of the dog and any other unregis‐
tered occupants. This finding—while not necessary to our
holding since Procknow’s expectation of privacy had van‐
ished—was not clearly erroneous. We conclude that the dis‐
trict court did not err in denying Procknow’s motion to sup‐
press the evidence obtained from the hotel room.5
5 We do not need to reach the government’s alternative argument that
the officers’ entry into the hotel room was a legitimate exercise of the
police’s “community caretaking” function, a doctrine which we have
heretofore “limited … to automobile searches.” Sutterfield v. City of Mil‐
14 No. 14‐1398
We now turn to Procknow’s contention that the district
court erred in denying his motion to suppress the evidence
obtained by grand jury subpoena, which Procknow contends
was tainted by the earlier IRS administrative summonses.
Procknow argues that the IRS acted in bad faith because it
issued the administrative summonses for the sole purpose of
furthering a criminal investigation. The government re‐
sponds that, because it is undisputed that there was no De‐
partment of Justice referral in effect when the summonses
were sent, the use of administrative‐summons power for
criminal investigation was proper. To understand these ar‐
guments, some background is necessary.
In 1978, the Supreme Court decided that the IRS may not
validly issue an administrative summons (also known as a
“civil summons”) for the sole purpose of a criminal investi‐
gation, even if the criminal investigation had not yet been
referred to the Department of Justice for prosecution. United
States v. LaSalle Nat’l Bank, 437 U.S. 298, 317 (1978). In 1982,
Congress amended the statute governing administrative
summonses in two ways. First, Congress added a section
providing that the IRS may issue summonses for “the pur‐
pose of inquiring into any offense connected with the ad‐
ministration or enforcement of the internal revenue laws.” 26
waukee, 751 F.3d 542, 555 (7th Cir.), cert. denied, 135 S. Ct. 478 (2014). We
note, though, that it would seem to be a peculiar result if officers were
prohibited from assisting a hotel in removing an abandoned dog from
the premises. Cf. Minn. Stat. § 343.29(1) (providing that a peace officer
“may remove, shelter, and care for any animal … not properly fed and
watered, or provided with suitable food and drink in circumstances that
threaten the life of the animal”).
No. 14‐1398 15
U.S.C. § 7602(b). Second, Congress dictated when the IRS’s
administrative‐summons authority ends: “No summons
may be issued under this title … with respect to any person
if a Justice Department referral is in effect with respect to
such person.” Id. § 7602(d)(1).
A majority of circuits have held “that the IRS may validly
issue a summons pursuant to 26 U.S.C. § 7602, as amended
in 1982, for the sole purpose of a criminal investigation,” and
the 1982 amendment to § 7602 established a bright‐line rule
that “the IRS’s authority to issue summonses for the purpose
of investigating any offense relating to the tax code is extin‐
guished only when the investigation is referred to the De‐
partment of Justice.” Scotty’s Contracting & Stone, Inc. v. Unit‐
ed States, 326 F.3d 785, 788–89 (6th Cir. 2003) (collecting cas‐
es). In 1990, prior to consideration of the issue by many other
circuits, we noted: “There is some debate as to whether this
‘solely criminal purpose’ ground discussed in LaSalle sur‐
vived the 1982 amendments to § 7602, and specifically the
addition of § 7602(b). … [W]e need not, and do not, resolve
this debate here.” United States v. Michaud, 907 F.2d 750, 752
n.2 (7th Cir. 1990) (en banc); compare id. at 754 n.1 (Coffey, J.,
concurring) (stating that the holding in LaSalle was unaffect‐
ed by the 1982 amendment to § 7602), with id. at 757 (Posner,
J., dissenting, joined by three other judges) (stating that the
court should find that the 1982 amendment to § 7602 estab‐
lished a bright‐line rule that “[b]efore referral, the IRS is free
to use the summons procedure to investigate potential crim‐
inal liability”). Later, we cited Michaud in support of the
statement that the IRS “cannot use its summons authority if
its only purpose is to gather evidence for a criminal investi‐
gation.” United States v. Berg, 20 F.3d 304, 309 n.6 (7th Cir.
1994).
16 No. 14‐1398
Procknow relies upon Michaud and Berg to argue that
“whether or not the civil summonses were issued prior to
the DOJ referral is not the only relevant inquiry—a more
important inquiry is whether the civil summonses were is‐
sued for the sole purpose of a criminal investigation or pros‐
ecution.” Meanwhile, the government contends that “[t]he
best reading of Section 7602 is the one adopted by the major‐
ity of circuits and urged by the dissenters in Michaud,”
which is to say, “[a]s long as no Justice Department referral
is in effect, the use of administrative summons power for
criminal investigation is proper.” But before we wade fur‐
ther into this murky issue, we pause to consider what might
await us on the other side—i.e., what remedy is available to
Procknow if we were to find that the administrative sum‐
monses were improperly issued.
In Michaud, the remedy under consideration was quash‐
ing the summonses. 907 F.2d at 751. This remedy does not
advance Procknow’s cause because all of the administrative
summonses were withdrawn and all evidence received from
the summonses was returned or destroyed. Procknow in‐
stead argues that the appropriate remedy here is to suppress
all evidence derived from grand jury subpoenas issued after
the administrative summonses.
“[T]he federal exclusionary rule, which forbids the use of
evidence obtained in violation of the Fourth or Fifth
Amendments, does not extend to violations of statutes and
regulations.” United States v. Kontny, 238 F.3d 815, 818 (7th
Cir. 2001); see United States v. Caceres, 440 U.S. 741, 755 (1979)
(holding that the failure of an IRS agent to follow IRS elec‐
tronic surveillance regulations did not require suppression
of tape recordings in prosecution of taxpayer). However,
No. 14‐1398 17
“[i]n theory,” a “valid argument for suppression” could be
made if the government’s use of “administrative measures
that do not require probable cause … undermin[ed] the
Fourth Amendment’s probable cause requirement.” United
States v. Utecht, 238 F.3d 882, 886 (7th Cir. 2001). Procknow
offers just such an argument (i.e., “Agent Kuntsman used an
IRS civil summons to circumvent probable cause and due
process requirements”), but the record does not contain facts
to support it. Procknow offers no basis to disturb the district
court’s finding that “Procknow did not … prove any actual
misuse of information obtained from these summonses” (or,
as stated by the magistrate judge, “[t]he IRS obtained no in‐
formation from the summonses”).
Utecht, and every other case relied upon by Procknow
which contemplates suppression as a remedy, did so in the
context of suppressing evidence directly derived from admin‐
istrative summonses. Here, since all evidence directly de‐
rived from the summonses was returned or destroyed,
Procknow must claim, as he does, that “the information ob‐
tained from improperly issued civil summonses taints the
evidence obtained from the subsequent grand jury subpoe‐
nas.” But merely claiming the evidence is tainted does not
make it so. The record simply contains no indication that the
grand jury subpoenas were in any way affected by the evi‐
dence derived from the administrative summonses. Indeed,
Procknow failed to subpoena IRS agent Kuntsman—the
most likely source of information on this topic—to appear at
the evidentiary hearing on the motion to suppress. And
Procknow offers no challenge to the grand jury subpoenas in
isolation. Cf. United States v. R. Enters., 498 U.S. 292, 300
(1991) (“[T]he law presumes, absent a strong showing to the
18 No. 14‐1398
contrary, that a grand jury acts within the legitimate scope of
its authority.”).
Even if we were to insist upon a showing of probable
cause in this situation, the government has shown that, prior
to the issuance of the administrative summonses or the
grand jury subpoenas, the authorities had adequate probable
cause to believe Procknow was involved in stolen‐identity
refund theft. The authorities had a wealth of information on
this score obtained (legally, as we have just held) from the
search of Procknow’s hotel room, as well as the April 2011
suspicious‐activity report by Procknow’s bank of five depos‐
its into Procknow’s account of tax refunds in three different
names. We cannot say that the use of the withdrawn admin‐
istrative summonses circumvented any probable cause re‐
quirement or otherwise violated Procknow’s constitutional
rights. Accordingly, even if the IRS issued the summonses in
contravention of § 7602, suppression of the evidence derived
from the grand jury subpoenas would not be the appropriate
remedy. See Caceres, 440 U.S. at 754–55 (“In view of our con‐
clusion that none of respondent’s constitutional rights has
been violated here, either by the actual recording or by the
[IRS’s] violation of its own regulations, our precedents en‐
forcing the exclusionary rule to deter constitutional viola‐
tions provide no support for the rule’s application in this
case.”).
We conclude that the district court did not err in denying
Procknow’s motion to suppress. The district court’s judg‐
ment is AFFIRMED.