The Spouse at the Door
Two special agents go to Robert Vale's residence to interview him about a criminal tax investigation involving false exemption claims and unreported consulting income. Vale's spouse, Elena, answers the door. She says Robert is not home and invites the agents into the living room. The agents know from an informant that Vale may have an offshore account. Elena asks, "Is this about the offshore account?" She also says, "Robert keeps a second set of books in the basement." Vale is not present, and the agents have no search warrant. The agents have a business card and a general letter addressed to Vale requesting an interview. They are unsure whether Elena can consent to their entry or to a search of the basement.
1. What may the agents say to Elena about the investigation, and what must they avoid saying?
Read the worked answer
The agents may identify themselves as IRS Criminal Investigation special agents, state that they are looking for Robert Vale, and ask when he will return or how to reach him. They must not disclose return information protected by IRC 6103, including whether Vale is under investigation, the nature of the tax issues, or the existence of an offshore account. Elena's question about the offshore account should not be confirmed or denied. The agents should not falsely describe the visit as a routine audit or a civil matter, because that would be a misleading statement about the nature of their work. They also should not threaten her or promise that Robert will avoid prosecution if he cooperates. If Elena volunteers information, the agents may listen, but they should not turn the encounter into an interrogation of a third party without considering the applicable third-party contact rules and her own rights. The safest approach is to be truthful about their identity and purpose, limited to the fact that they need to speak with Robert.
2. Elena invites the agents into the living room. May they enter, and may they search the basement based on her consent?
Read the worked answer
Entry into the living room based on Elena's invitation is generally permissible if she has common authority over the residence and her consent is voluntary. Common authority means mutual use and control, not merely a property interest. A spouse who shares the home ordinarily can consent to entry into common areas. That consent does not automatically extend to a search of the basement, especially if Robert uses it as a private office or keeps personal records there. The agents should ask for specific consent to search the basement, explain the scope, and document Elena's response. If she consents, the search must stay within the scope of what she actually authorized. If Robert is absent but later objects, the co-occupant consent issue can become contested, so the agents should avoid relying on ambiguous consent. If Elena refuses consent to search the basement, the agents must not search without a warrant or another legal exception. Plain view observations during a lawful entry may be used, but the agents should not deliberately look for documents beyond the scope of consent.
3. Elena says there is a second set of books in the basement. What should the agents do next, and what issues arise if they want to use Elena as a witness?
Read the worked answer
The agents should not go to the basement without consent or a warrant. They can ask Elena whether she will consent to a search of the basement for the books, document the scope of her consent, and, if she agrees, conduct a careful search limited to that consent. If she refuses or the scope is unclear, the agents should secure the residence and seek a search warrant based on the informant information and Elena's statement. Elena may be a witness, but the agents should consider the marital privileges. Federal law recognizes a confidential marital communications privilege, which protects private communications between spouses, and a spousal testimonial privilege that generally belongs to the witness spouse in federal criminal cases. The existence of the books and their location are observations and acts, not necessarily confidential communications. The agents should not ask Elena to act as an agent of the government or to secretly record Robert. They should also avoid giving her legal advice and should document her statements accurately.