concurring and dissenting:
I would go further than my brother Timbers in favor of the Government in one respect. Instead of rejecting the Government’s contention that if Meissner is a fugitive he should not be permitted to press his appeal, see majority opinion at note 14, I would accept it and dispose of the case on that basis. If Meissner is a fugitive now, a matter which was in some dispute when the appeal was argued, he should not have a right to appeal, and his appeal, and concomitantly the appeal of the bank, should be dismissed. See Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). A remand should be ordered, therefore, to determine whether Meissner is a fugitive.
If, on remand, he is found not to be a fugitive, then I think it would be an abuse of discretion to deny him permissive intervention under F.R.Civ.P. 24(b). See United States v. Mellon Bank, N.A., 521 F.2d 708, 711 n. 11 (3d Cir. 1975), a related case where permission to intervene was sustained on *860appeal.1 Cf. Donaldson v. United States, 400 U.S. 517, 528-30, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). Donaldson involved a summons for records of employment and the like and did not in any way involve private papers of the taxpayer.2 The Supreme Court, so far as appears, has not had occasion to consider in a civil action a taxpayer’s Fourth Amendment claim relating to private papers in a safe-deposit box.
The majority opinion discussed Fourth and Fifth Amendment claims by the taxpayer. So far as stock certificates and other paraphernalia of ownership are concerned, I see no constitutional problem. So far as private papers, unrelated to the tax assessment are concerned, I think the scope of the order below was too broad in allowing the internal revenue agents to rummage through everything in the safe-deposit box without judicial supervision. In any event, the Government has actually been permitted to inspect whatever private papers may have been in the box, and, in that aspect, the case has become moot. I mention this to emphasize that my brother Timbers’ views on the Fourth and Fifth Amendments are his own views expressed obiter. Lest I be thought to agree, I must indulge in some dicta of my own.
What the majority elides in its discussion of the Fourth Amendment (Part 2) and which concerns me, is the constitutional claim that arises under the Fourth Amendment with respect to private papers, other than the tangible assets involved in the tax matter, which may be situated in the safe-deposit box.
My brother Timbers concedes that “the search did come within the scope of the Fourth Amendment.” He also concedes that cases where the Government seeks to obtain “records kept by a bank or an accountant” are not dispositive, because of a lack of “expectation of privacy.” Note 13. But the majority sustains the broad order below on the curious ground that “probable cause” was shown. But they do not tell us “probable cause” to believe what. The analogy to warrants issued on probable cause in criminal cases, with due respect, has nothing whatever to do with a search of private papers in a civil tax proceeding which are not “particularly describe[d],” and which are presumptively neither contraband nor evidence.
The order below, perhaps because taxpayer’s counsel was not permitted to join in its drafting, is simply too broad. It allows the IRS to have access to whatever private papers might be contained in the vault. In that sense the order is no less than a general writ proscribed by the Fourth Amendment which I believe Judge MacMahon did not intend. In modern times the strong box formerly kept at home is now the safe-deposit box kept in the vault of a bank. Out of fear of fire and burglary, private papers are kept safe away from home. The place of deposit makes them no less “private papers,” and there is every expectation of privacy, see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), in a bank vault. By way of example, there is no reason for the internal revenue agents to read a man’s letters to his wife when he was courting her in order to perfect a lien on his assets. The Fourth Amendment speaks of “the right of the people to be secure in their . . . papers . *861against unreasonable searches and seizures.” And when warrants issue upon probable cause supported by oath or affirmation, they must particularly describe the “. . . things to be seized.”
I respectfully suggest that my brothers do not face this problem of private papers— unrelated to tangible assets of the taxpayer or the discovery of such — which the order below permitted the Government to take and examine. It is commonplace that the Constitution must be read with the times. This kind of general incursion represents precisely what I think the Founding Fathers would have sought to prevent.
The Republic has survived with the search warrant requirement, codified to eliminate overburdening the Government and with due limitations for the protection of the citizen. We deal here, not with an exclusionary rule that protects the guilty whose guilt is made manifest by the very contraband seized. We deal rather with judicial intervention to serve a limited purpose, to insure that a valid lien of the Internal Revenue Service in a civil tax matter is enforced where the administrative summons encounters a resistance that will bend only to judicial authority.
I agree with the majority that the taxpayer has no Fifth Amendment privilege because he himself is not compelled to produce the papers. See Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Couch was decided principally on Fifth Amendment grounds; the Fourth Amendment was held not to be applicable because there “exists no legitimate expectation of privacy.” 409 U.S. at 336, 93 S.Ct. at 619. Mr. Justice Brennan, concurring, did not discuss the Fourth Amendment but would have made the Fifth Amendment privilege available “to one who places records in a safety deposit box.” 409 U.S. 322 at 337, 93 S.Ct. 611, at 620, 34 L.Ed.2d 548. And as the majority opinion notes, the Government itself tried to distinguish United States v. Guterma, 272 F.2d 344 (2d Cir. 1959), albeit again on Fifth Amendment grounds, as involving “mere custodial safekeeping of records,” 409 U.S. at 334, n. 16, 93 S.Ct. at 618, the very situation here.
In my view, the analogy to search warrants in criminal cases suggested by the majority is simply inapposite. In the case of a safe-deposit box in a bank, sealing the box is, generally, adequate protection against destruction or diversion of assets there situated. If the Government requires an inventory of assets, an equitable procedure should be evolved to accommodate both interests. I would hold that if Meissner is found by the District Court not to be a fugitive, the order of the District Court denying intervention should be reversed. While it is too late in this case, the Court should be directed in future cases to order that the safe-deposit box be brought to the Courthouse, where under the supervision of the Court, the box would be opened and those private papers, if any, which are unrelated to the taxpayer’s assets be given to the taxpayer or his representative without scrutiny by the executive branch. I think this is a sensible procedure which would enable the Government to exercise its right to the taxpayer’s assets, as if they were chattels upon which a lien has attached, while preserving the taxpayer’s expectation of privacy in his own private papers, see Katz v. United States, supra, which have nothing to do with his tax liability.3
I would remand for a determination of whether Meissner is a fugitive and of whether the case is now moot, so far as his private papers are concerned. In other respects, I concur in the majority opinion.
. It is doubtful whether the bank itself can claim the constitutional rights of the third party — jus tertii — in the absence of statutory authority. See, e. g., Sierra Club v. Morton, 405 U.S. 727, 732 & n. 3, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Linda S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). See Note, Standing to Assert Constitutional Jus Tertii. 88 Harv.L.Rev. 423 (1974). “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969); Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); see Singleton v. Wulff, 428 U.S. 106, 118, 96 S.Ct. 2868, 2876, n. 7, 49 L.Ed.2d 826 (1976).
. The Fourth Amendment claim was withdrawn. See 400 U.S. at 521, 91 S.Ct. 534. In any event, the obiter statement of Mr. Justice Blackmun concerning the Fourth Amendment on page 522, 91 S.Ct. 534, related only to records of accounts in banks, not safe-deposit boxes.
. The American Law Institute in its proposed official draft of A Model Code of Pre-Arraignment Procedure has suggested that where documents other than the subject of a search warrant are found, the executing officer may not examine “intermingled documents,” but must present the documents for a judicial hearing at which any person asserting any right or interest in the documents may appear and move for limitations on the further search as may be appropriate to prevent unnecessary or unreasonable invasion of privacy. Section SS 220.5, pp. 134-137 (April 15, 1975). If the ALI is right, a similar procedure would seem to be required a fortiori in a civil tax proceeding.