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Colo. court upholds tax privacy for illegals

- The Washington Times - Tuesday, December 15, 2009

DENVER | The Colorado Supreme Court ruled Monday that authorities violated the constitutional privacy rights of suspected undocumented workers when they seized their tax records in an identity-theft investigation, a decision that infuriated foes of illegal immigration.

In a 4-3 decision, the court held that Weld County investigators lacked probable cause to search a tax preparer's office in search of the tax records of illegal immigrants suspected of identity theft. The court also ruled that the tax filings were confidential.

The decision affirmed the ruling of the Weld County District Court, which had suppressed the evidence against one of the defendants, Ramon Gutierrez, ruling that the search violated his Fourth Amendment rights.

More than 70 people were charged with criminal impersonation and identity theft after the 2008 search of the office of Amalia's Translation and Tax Service in Greeley. During the investigation, known as Operation Numbers Game, authorities copied the files of 1,338 tax filers thought to have used false or stolen Social Security numbers.

The district court ruled that the Weld County Sheriff's Office conducted "an exploratory search" that allowed investigators to rummage through "the confidential records of thousands of persons based on nothing more than a suspicion that one or more of them may have committed a crime."

"The warrant in the present case did not identify the tax preparer or Gutierrez as the target of the search. It made no showing of probable cause as to Gutierrez or any other client of Amalia's Tax Service," Justice Michael Bender said in the 76-page majority opinion.

Weld County District Attorney Ken Buck said that identifying specific targets in the search warrant would have been impossible because the suspects used multiple identities.

"The crime of identity theft involves a person using multiple names. How can we go to the court and say, 'We want the file of this person' when that person isn't using his or her real name?' " he said.

Mr. Buck also contended that the suspects had given up their right to privacy by filing documents with conflicting names and identification numbers with the Internal Revenue Service. The suspects in the case had used false or stolen Social Security numbers on their W-2 forms and then Individual Tax Identification Numbers on their 1040 forms.

Mr. Gutierrez had used different Social Security numbers on two W-2 forms in the same year. One of those numbers belonged to another person. He also had an ITIN, which illegal immigrants commonly use in combination with a Social Security number.

All people working in the United States are required to file tax returns regardless of their immigration status.

"They're telling the IRS, 'We're here illegally,' and the IRS is acknowledging that they're here illegally," said Mr. Buck, who is running for the Republican nomination for U.S. Senate. "I think the Constitution has been turned on its head."

The American Civil Liberties Union has sued on behalf of Amalia's Translation and Tax Service, which caters to agricultural workers in Greeley, arguing that the search and seizure was illegal.

Critics of illegal immigration called the decision an example of courts conferring constitutional rights onto noncitizens. Lawyers representing Mr. Gutierrez said the case showed that authorities must follow proper procedure even when dealing with suspected illegal immigrants.

"The Fourth Amendment requires you to have probable cause particular to the person you want to search for," said Kevin Strobel, head of the Greeley public defender's office, which represented Mr. Gutierrez. "It applies to everyone in this country, regardless of how you got here."