U.S. Supreme Court United States v. Caceres, 440
U.S. 741 (1979) United States v.
Caceres No. 76-1309 Argued January 8, 9,
1979 Decided April 2, 1979 440
U.S. 741 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT Syllabus Regulations in the Internal Revenue Service Manual prohibit
"consensual electronic surveillance" between taxpayers and IRS
agents unless certain specified prior authorization is obtained.
With respect to the monitoring of face-to-face (nontelephone)
conversations, the Director of the Internal Security Division or
the Assistant Commissioner (Inspection) of the IRS may authorize
the recording of such conversations in emergency situations, but if
there is at least 48 hours in which to obtain approval, a signed
request must also be submitted to the Attorney General or a
designated Assistant Attorney General. In connection with the audit
of the income tax returns of respondent and his wife, an IRS agent
met with respondent on, among other dates, January 31 and February
6, 1975. Emergency approval for the use of electronic equipment at
both meetings was obtained, pending a request to the Justice
Department for authority to monitor conversations with respondent
for a 30-day period, but such authority was never obtained for the
January 31 and February 6 meetings. At these meetings, respondent,
unaware of the surveillance, paid or offered money to the agent for
a favorable resolution of the audit. The agent at both meetings
wore a concealed radio transmitter which allowed other agents to
monitor and record the conversations. Subsequently, respondent was
prosecuted for bribing the IRS agent. At his trial, he moved to
suppress tape recordings of the conversations on the ground that
the authorizations required by the IRS regulations had not been
secured. The District Court granted the motion, and the Court of
Appeals affirmed. Both courts held that the meetings had not been
monitored in accordance with the IRS regulations, concluding that
neither meeting fell within the emergency provision of the
regulations because the exigencies were the product of
"government-created scheduling problems." Held: The tape recordings, and the testimony of the
agents who monitored the meetings in question, were not required to
be excluded from evidence because of the conceded violation of the
IRS regulations. Pp. 440 U. S.
749 -757.

															(a) While a court has a duty to enforce an agency regulation
when compliance with the regulation is mandated by the Constitution
or federal law, here the agency was not required either by the
Constitution, Lopez v. United States, 373 U.
S. 427 ; United States v.
White , 401 U.S. Page 440 U. S. 742 745, or by statute, Bridges v. Wixon, 326 U.
S. 135 , distinguished, to adopt any particular
procedures or rules before engaging in consensual monitoring and
recording. Pp. 440 U. S.
749 -751.

															(b) None of respondent's constitutional rights was violated
either by the actual recording or by the agency's violation of its
own regulations. That respondent's conversations were monitored
without Justice Department approval, whereas conversations of
others similarly situated would, assuming the IRS generally follows
its own regulations, be recorded only with such approval, does not
amount to a denial of equal protection. Nor does the IRS officials'
construction of the situation as an emergency, even if erroneous,
raise any constitutional questions. And this is not a case in which
the Due Process Clause is implicated, since respondent cannot
reasonably contend that he relied on the regulations or that their
breach had any effect on his conduct. Finally, the Administrative
Procedure Act provides no grounds for judicial enforcement of the
violated regulations, since the remedy sought is not invalidation
of the agency action, but rather judicial enforcement of the
regulations by means of the exclusionary rule. Pp. 440 U. S.
751 -755.

															(c) This Court declines to adopt any rigid exclusionary rule,
such as is urged by respondent, whereby all evidence obtained in
violation of regulations concerning electronic eavesdropping would
be excluded. Nor can this Court accept respondent's further
argument that, even without a rigid rule of exclusion, his is a
case in which evidence secured in violation of agency regulations
should be excluded under a more limited, individualized approach,
since, to the contrary, this case exemplifies those situations in
which evidence would not be excluded under a case-by-case approach,
it appearing that the agency action, though later found to violate
the regulations, nonetheless reflected a reasonable, good faith
attempt to comply in a situation in which monitoring was
appropriate and would have received Justice Department approval if
the request had been received more promptly. Pp. 440 U. S.
755 -757.

															545 F.2d 1182, reversed.

															STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. MARSHALL, J., filed a dissenting opinion, in which
BRENNAN, J., joined, post, p. 440 U. S.
757 . Page 440 U. S. 743 MR. JUSTICE STEVENS delivered the opinion of the Court.

															The question we granted certiorari to decide is whether evidence
obtained in violation of Internal Revenue Service (IRS) regulations
may be admitted at the criminal trial of a taxpayer accused of
bribing an IRS agent. 436 U. S. 43 (1978).

															Unbeknown to respondent, three of his face-to-face conversations
with IRS Agent Yee were monitored by means of a radio transmitter
concealed on Yee's person. Respondent moved to suppress tape
recordings of the three conversations on the ground that the
authorizations required by IRS regulations had not been secured.
The District Court granted the motion. The Court of Appeals for the
Ninth Circuit reversed as to the third tape; it concluded that
adequate authorization had been obtained. [ Footnote 1 ] As to the first two tapes, however, the
Court of Appeals agreed with the District Court both that the IRS
regulations had not been followed, and that exclusion of the
recordings was therefore required. It is the latter conclusion that
is at issue here.

															The Government argues that exclusion of probative evidence in a
criminal trial is an inappropriate sanction for violation of an
executive department's regulations. In this case, moreover, it
argues that suppression is especially inappropriate because the
violation of the regulation was neither deliberate nor prejudicial,
and did not affect any constitutional Page 440 U. S. 744 or statutory rights. We agree that suppression should not have
been ordered in this case, and therefore reverse the judgment of
the Court of Appeals. I Neither the Constitution nor any Act of Congress requires that
official approval be secured before conversations are overheard or
recorded by Government agents with the consent of one of the
conversants. [ Footnote 2 ] Such
"consensual electronic surveillance" between taxpayers and IRS
agents is, however, prohibited by IRS regulations unless
appropriate prior authorization is obtained. [ Footnote 3 ]

															The IRS Manual sets forth in detail the procedures to be
followed in obtaining such approvals. [ Footnote 4 ] For all types of requests Page 440 U. S. 745 the regulations require an explanation of the reasons for the
proposal, the type of equipment to be used, the names of the
persons involved, and the duration of the proposed monitoring.

															Approval by as many as three different levels of authority may
be required, depending on the kind of surveillance that is
contemplated and the circumstances of the request. Telephone
conversations may be monitored with the approval of an Assistant
Regional Inspector of the Internal Security Division. Such advance
approval may be requested and given verbally, although the
authorization must subsequently be Page 440 U. S. 746 confirmed in writing. The monitoring of nontelephone
conversations requires approval at the national as well as the
regional level. In emergency situations, he Director, or Acting
Director, Internal Security Division, or the Assistant Commissioner
(Inspection) may authorize the recording. If there is at least 48
hours in which to obtain approval, a signed request must also be
submitted to the Attorney General of the United States, or a
designated Assistant Attorney General, by the Director or Acting
Director of the Internal Security Division. II On March 14, 1974, Agent Yee met with respondent and his wife in
connection with an audit of their 1971 income tax returns. After
Mrs. Caceres left the meeting, respondent offered Yee a "personal
settlement" of $500 in exchange for a favorable resolution of the
audit. When he returned to the IRS office, Yee reported the offer
to his superiors and prepared an affidavit describing it. [ Footnote 5 ]

															The record reflects no further discussion of the offer until
January, 1975. It does indicate, however, that one telephone
conversation between Yee and respondent, on March 21, 1974, was
recorded with authorization, [ Footnote 6 ] and that authority was also obtained to
monitor face-to-face conversations with respondent from time to
time during the period between March and September, 1974. [ Footnote 7 ] Yee continued to work on
the Page 440 U. S. 747 audit of respondent's records throughout this period, but his
meetings, until January, 1975, were with Mrs. Caceres and the
Cacereses' accountant. [ Footnote
8 ]

															On January 27, 1975, Yee had a meeting with respondent that was
not recorded. According to Yee's affidavit, [ Footnote 9 ] the meeting proceeded in two stages.
First, he discussed his calculations with respondent, Mrs. Caceres,
and their accountant. When respondent and his wife asked for an
additional week to check their records, Yee told them it would be
necessary to sign an extension because the statute of limitations
would otherwise expire soon. Respondent stated that he would have
to consult his attorney before signing any extension, and would
call Yee with his decision later that day.

															Yee then left the office to return to his car. He was followed
by respondent, who revived the subject of a "personal settlement."
This time, respondent indicated that he had $500 that he would give
Yee immediately, with an additional $500 to be paid when the matter
was finally settled. Yee refused the offer, but, at respondent's
insistence, eventually stated that he might consider it.

															In subsequent conversations initiated by Agent Yee, all of which
were monitored, [ Footnote
10 ] respondent indicated that he was not prepared for another
meeting with Yee. Finally, in a conversation on January 30 at 5:15
p.m., respondent agreed to a meeting the following day at 2 p.m. At
8:15 a.m. on the Page 440 U. S. 748 31st, the Regional Inspector in San Francisco telephoned the
Director of Internal Security in Washington and obtained emergency
approval for the use of electronic equipment to monitor the meeting
that afternoon. On the same day, a written request for authority to
monitor face-to-face conversations for a period of 30 days was
initiated and, in due course, forwarded to Washington for
submission to the Department of Justice.

															At the meeting on the 31st, respondent gave Yee $500 and
promised to give him an additional $500 when he received a notice
from IRS showing his deficiency at an amount upon which he and Yee
had agreed. As in all his future meetings with respondent, Yee wore
a concealed radio transmitter which allowed other agents to monitor
and record their conversation.

															Yee next called respondent on February 5 and arranged a meeting
for the next day to review the audit agreement. Because the
Department of Justice had not yet acted on, or perhaps even
received, the request for a 30-day authorization, the Regional
Inspector again requested and obtained emergency approval to
monitor the meeting with respondent. At the February 6 meeting,
respondent renewed his promise to pay an additional $500 in
connection with the 1971 return, and also offered Yee another
$2,000 for help in settling his 1973 and 1974 returns.

															On February 11, a Deputy Assistant Attorney General approved the
request for authority to monitor Yee's conversations with
respondent for 30 days. The approval was received in time to cover
a meeting held that day at which Yee was paid the additional $500.
Because the 30-day period did not commence until February 11,
however, no approval from the Department of Justice was ever
obtained for the earlier monitorings of January 31 and February
6.

															The District Court and the Court of Appeals both held that the
two earlier meetings had not been monitored in accordance with IRS
regulations, since Justice Department approval had Page 440 U. S. 749 not been secured. The courts recognized that such approval is
not required, by the terms of the regulations, in "emergency
situations" when less than 48 hours is available to secure
authorization. They recognized, too, that, in each instance, less
than 48 hours did exist between the time the IRS initiated its
request for monitoring approval and the time of the scheduled
meeting with Yee. But the courts concluded that neither meeting
fell within the emergency provision of the regulations, because the
exigencies were the product of "government-created scheduling
problems." [ Footnote 11 ]

															The Government does not challenge that conclusion. We are
therefore presented with the question whether the tape recordings,
and the testimony of the agents who monitored the January 31 and
February 6 conversations, should be excluded because of the
violation of the IRS regulations. III A court's duty to enforce an agency regulation is most evident
when compliance with the regulation is mandated by the Constitution
or federal law. In Bridges v. Wixon, 326 U.
S. 135 , 326 U. S.
152 -153, for example, this Court held invalid a
deportation ordered on the basis of statements which did not comply
with the Immigration Service's rules requiring signatures and
oaths, finding that the rules were designed "to afford [the alien]
due process of law" by providing "safeguards against essentially
unfair procedures." [ Footnote
12 ]

															In this case, however, unlike Bridges v. Wixon, the
agency was not required by the Constitution or by statute to adopt
any particular procedures or rules before engaging in
consensual Page 440 U. S. 750 monitoring and recording. While Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et
seq., regulates electronic surveillance conducted without the
consent of either party to a conversation, federal statutes impose
no restrictions on recording a conversation with the consent of one
of the conversants.

															Nor does the Constitution protect the privacy of individuals in
respondent's position. In Lopez v. United States, 373 U. S. 427 , 373 U. S. 439 ,
we held that the Fourth Amendment provided no protection to an
individual against the recording of his statements by the IRS agent
to whom he was speaking. In doing so, we repudiated any suggestion
that the defendant had a

															"constitutional right to rely on possible flaws in the agent's
memory, or to challenge the agent's credibility without being beset
by corroborating evidence that is not susceptible of
impeachment,"

															concluding instead that

															"the risk that petitioner took in offering a bribe to [the IRS
agent] fairly included the risk that the offer would be accurately
reproduced in court, whether by faultless memory or mechanical
recording."

															The same analysis was applied in United States v.
White, 401 U. S. 745 , to
consensual monitoring and recording by means of a transmitter
concealed on an informant's person, even though the defendant did
not know that he was speaking with a Government agent:

															"Concededly, a police agent who conceals his police connections
may write down for official use his conversations with a defendant
and testify concerning them, without a warrant authorizing his
encounters with the defendant and without otherwise violating the
latter's Fourth Amendment rights. Hoffa v. United States, 385 U.S. at 385 U. S. 300 -303. For
constitutional purposes, no different result is required if the
agent, instead of immediately reporting and transcribing his
conversations with defendant, either (1) simultaneously records
them with electronic equipment which he is carrying on his
person, Page 440 U. S. 751 Lopez v. United States, supra; (2) or carries radio
equipment which simultaneously transmits the conversations either
to recording equipment located elsewhere or to other agents
monitoring the transmitting frequency. On Lee v. United
States , [ 343 U.S.
747 ]. If the conduct and revelations of an agent operating
without electronic equipment do not invade the defendant's
constitutionally justifiable expectations of privacy, neither does
a simultaneous recording of the same conversations made by the
agent or by others from transmissions received from the agent to
whom the defendant is talking and whose trustworthiness the
defendant necessarily risks." United States v. White, supra, at 401 U. S. 751 (opinion of WHITE, J.). [ Footnote 13 ]

															Our decisions in Lopez and Whit e demonstrate
that the IRS was not required by the Constitution to adopt these
regulations. [ Footnote 14 ]
It is equally clear that the violations of agency regulations Page 440 U. S. 752 disclosed by this record do not raise any constitutional
questions.

															It is true, of course, that respondent's conversations were
monitored without the approval of the Department of Justice,
whereas the conversations of others in a similar position would,
assuming the IRS generally follows its regulations, be recorded
only with Justice Department approval. But this difference does not
even arguably amount to a denial of equal protection. No claim is,
or reasonably could be, made that, if the IRS had more promptly
addressed this request to the Department of Justice, it would have
been denied. As a result, any inconsistency of which respondent
might complain is purely one of form, with no discernible effect in
this case on the action taken by the agency and its treatment of
respondent.

															Moreover, the failure to secure Justice Department
authorization, while conceded here to be a violation of the IRS
regulations, was attributable to the fact that the IRS officials
responsible for administration of the relevant regulations, both in
San Francisco and Washington, construed the situation as an
emergency within the meaning of those regulations. Their
construction of their own regulations, even if erroneous, was not
obviously so. That kind of error by an executive agency in
interpreting its own regulations surely does not raise any
constitutional questions.

															Nor is this a case in which the Due Process Clause is implicated
because an individual has reasonably relied on agency Page 440 U. S. 753 regulations promulgated for his guidance or benefit and has
suffered substantially because of their violation by the agency.
[ Footnote 15 ] Respondent
cannot reasonably contend that he relied on the regulation, or that
its breach had any effect on his conduct. He did not know that his
conversations with Yee were being recorded without proper
authority. He was, of course, prejudiced in the sense that he would
be better off if all monitoring had been postponed until after the
Deputy Assistant Attorney General's approval was obtained on
February 11, 1975, but precisely the same prejudice would have
ensued if the approval had been issued more promptly. For the
record makes it perfectly clear that a delay in processing the
request, rather than any doubt about it.s propriety or sufficiency,
was the sole reason why advance authorization was not obtained
before February 11.

															Finally, the Administrative Procedure Act [ Footnote 16 ] provides no grounds for judicial
enforcement of the regulation violated in this case. The APA
authorizes judicial review and invalidation of agency action that
is arbitrary, capricious, an abuse of discretion, or not in
accordance with law, as well as action Page 440 U. S. 754 taken "without observance of procedure required by law."
[ Footnote 17 ] Agency
violations of their own regulations, whether or not also in
violation of the Constitution, may well be inconsistent with the
standards of agency action which the APA directs the courts to
enforce. [ Footnote 18 ]
Indeed, some of our most important decisions holding agencies bound
by their regulations have been in cases originally brought under
the APA. [ Footnote 19 ]

															But this is not an APA case, and the remedy sought is not
invalidation of the agency action. Rather, we are dealing with a
criminal prosecution in which respondent seeks judicial enforcement
of the agency regulations by means of the exclusionary rule. That
rule has primarily rested on the judgment that the importance of
deterring police conduct that may invade the constitutional rights
of individuals throughout the community outweighs the importance of
securing the conviction of the specific defendant on trial.
[ Footnote 20 ] In view of
our Page 440 U. S. 755 conclusion that none of respondent's constitutional rights has
been violated here, either by the actual recording or by the agency
violation of its own regulations, our precedents enforcing the
exclusionary rule to deter constitutional violations provide no
support for the rule's application in this case. [ Footnote 21 ] IV Respondent argues that the regulations concerning electronic
eavesdropping, even though not required by the Constitution or by
statute, are of such importance in safeguarding the privacy of the
citizenry that a rigid exclusionary rule should be applied to all
evidence obtained in violation of any of their provisions. We do
not doubt the importance of these rules. Nevertheless, without
pausing to evaluate the Government's challenge to our power to do
so, [ Footnote 22 ] we decline
to adopt any rigid rule requiring federal courts to exclude any
evidence obtained as a result of a violation of these rules.

															Regulations governing the conduct of criminal investigations are
generally considered desirable, and may well provide more valuable
protection to the public at large than the deterrence flowing from
the occasional exclusion of items of evidence in criminal trials.
[ Footnote 23 ] Although we do
not suggest that a suppression order in this case would cause the
IRS to abandon or modify its electronic surveillance regulations,
we cannot ignore the possibility that a rigid application of an
exclusionary rule to every regulatory violation could have a
serious Page 440 U. S. 756 deterrent impact on the formulation of additional standards to
govern prosecutorial and police procedures. [ Footnote 24 ] Here, the Executive itself has
provided for internal sanctions in cases of knowing violations of
the electronic surveillance regulations. [ Footnote 25 ] To go beyond that, and require exclusion
in every case, would take away from the Executive Department the
primary responsibility for fashioning the appropriate remedy for
the violation of its regulations. But since the content, and indeed
the existence, of the regulations would remain within the
Executive's sole authority, the result might well be fewer and less
protective regulations. In the long run, it is far better to have
rules like those contained in the IRS Manual, and to tolerate
occasional erroneous administration of the kind displayed by this
record, than either to have no rules except those mandated by
statute, or to have them framed in a mere precatory form.

															Nor can we accept respondent's further argument that, even
without a rigid rule of exclusion, his is a case in which evidence
secured in violation of the agency regulation should be excluded on
the basis of a more limited, individualized approach. Quite the
contrary, this case exemplifies those situations in which evidence
would not be excluded if a case-by-case approach were applied. The
two conversations at issue here were recorded with the approval of
the IRS officials in San Francisco and Washington. In an emergency
situation, Page 440 U. S. 757 which the agents thought was present, this approval would have
been sufficient. The agency action, while later found to be in
violation of the regulations, nonetheless reflected a reasonable,
good faith attempt to comply in a situation in which no one
questions that monitoring was appropriate and would have certainly
received Justice Department authorization, had the request been
received more promptly. In these circumstances, there is simply no
reason why a court should exercise whatever discretion it may have
to exclude evidence obtained in violation of the regulations.

															The judgment of the Court of Appeals is Reversed.

															[ Footnote 1 ]

															545 F.2d 1182 (1976). The District Court suppressed evidence
relating to the third conversation as well on the ground that the
approval of a Deputy Assistant Attorney General was not sufficient
to comply with the regulations. The Court of Appeals disagreed,
concluding that the Attorney General's authority to approve such
monitoring could be delegated not only to Assistant Attorneys
General, as provided specifically in the regulation, but also to
their deputies. That conclusion is not at issue here.

															[ Footnote 2 ] See United States v. White, 401 U.
S. 745 , 401 U. S. 752 (plurality opinion); Lopez v. United States, 373 U.
S. 427 ; 18 U.S.C. § 2511(2)(c); infra at 440 U. S.
749 -751.

															[ Footnote 3 ]

															The IRS regulations were drafted to conform to the requirements
of the Attorney General's October 16, 1972, Memorandum to the leads
of Executive Departments and Agencies. The memorandum mandates
Justice Department approval for all consensual monitoring of
nontelephone conversations by federal departments and agencies. The
only exceptions are if less than 48 hours is available to secure
approval or if exigent circumstances preclude requests for advance
authorization from the Justice Department; in such cases,
monitoring may be instituted under the authorization of the head of
the department or agency, or other officials designated by him.

															[ Footnote 4 ]

															Paragraph 652.22 of the IRS Manual (in effect Sept., 1975)
provides in pertinent part:

															"(1) The monitoring of non-telephone conversations with the
consent of one party requires the advance authorization of the
Attorney General or any designated Assistant Attorney General.
Requests for such authority may be signed by the Director, Internal
Security Division, or, in his/her absence, the Acting Director.
This authority cannot be redelegated. These same officials may
authorize temporary emergency monitoring when exigent circumstances
preclude requesting the authorization of the Attorney General in
advance. If the Director, Internal Security Division, cannot be
reached, the Assistant Commissioner (Inspection) may grant
emergency approval. This authority cannot be redelegated."

															"(2) Written approval of the Attorney General must be requested
48 hours prior to the use of mechanical, electronic or other
devices to overhear, transmit or record a non-telephone private
conversation with the permission of one party to the conversation.
. . . Any requests being telefaxed into the National Office should
be submitted four days prior to the anticipated equipment use. . .
."

															"(3) [A request] must be signed and submitted by the Regional
Inspector or Chief, Investigations Branch, to the Director,
Internal Security Division. Such requests will contain [reason for
such proposed use; type of equipment to be used; names of persons
involved; proposed location of equipment; duration of proposed use
(limited to 30 days from proposed beginning date); and manner or
method of installation]. . . . "

															" * * * *" "(6) When emergency situations occur, the Director or Acting
Director, Internal Security Division, or the Assistant Commissioner
(Inspection) will be contacted to grant emergency approval to
monitor. This emergency approval authority cannot be redelegated. .
. . Emergency authorization pursuant to this exception will not be
given where the requesting official has in excess of 48 hours to
obtain written advance approval from the Attorney General."

															"(7) If, at the time the emergency approval request is
submitted, it is desired that approval for use of electronic
equipment be given for an extended period, this should be indicated
on the [appropriate form]. The Director, in addition to reporting
his authorization for emergency use to the Attorney General, will
also request approval for the Use of Electronic Equipment for the
duration of that period specified by the requestor."

															[ Footnote 5 ]

															App. 20, 23-24, 46.

															[ Footnote 6 ] Id. at 227, 46.

															[ Footnote 7 ]

															Requests for authorization to use electronic equipment to
monitor nontelephone conversations are made on a form (No. 5177)
that requires disclosure of the dates of previous authorizations.
The form dated January 31, 1975, App. 63, is termed an extension,
and reports prior authorizations dated March 25, April 24, May 24,
June 27, July 23, and August 29, 1974. Under the regulations, a
single authorization may cover a period of up to 30 days; the
intervals between the dates of prior authorizations in this case
are consistent with successive 30-day authorizations, although this
had not been established by any evidence called to our
attention.

															[ Footnote 8 ]

															Yee had one follow-up conversation with respondent later in
March, which was not monitored. From that point until January,
1975, he had no further contact with respondent. App. to Pet. for
Cert. 16a (opinion and order of the District Court); App.
21-22.

															[ Footnote 9 ] Id. at 65-67.

															[ Footnote 10 ]

															In the District Court, respondent moved to suppress evidence
relating to these telephone conversations on the grounds that the
monitoring had not been properly authorized. The District Court
rejected that challenge, concluding that the applicable IRS
regulations had been followed with respect to these conversations.
App. to Pet. for Cert. 16a-17a. That ruling is not at issue
here.

															[ Footnote 11 ]

															545 F.2d at 1187. See also App. to Pet. for Cert. 20a
(opinion of District Court) ("the only emergency' was created
wholly by the I.R.S."). [ Footnote 12 ] See also United States ex rel. Bilokumsky v. Tod, 263 U. S. 149 , 263 U. S. 155 (Court assumed that "one under investigation with a view to
deportation is Legally entitled to insist upon the observance of
rules promulgated by the Secretary pursuant to law").

															[ Footnote 13 ]

															MR. JUSTICE WHITE further stated:

															"Nor should we be too ready to erect constitutional barriers to
relevant and probative evidence which is also accurate and
reliable. An electronic recording will many times produce a more
reliable rendition of what a defendant has said than will the
unaided memory of a police agent. It may also be that, with the
recording in existence, it is less likely that the informant will
change his mind, less chance that threat or injury will suppress
unfavorable evidence, and less chance that cross-examination will
confound the testimony. Considerations like these obviously do not
favor the defendant, but we are not prepared to hold that a
defendant who has no constitutional right to exclude the informer's
unaided testimony nevertheless has a Fourth Amendment privilege
against a more accurate version of the events in question."

															401 U.S. at 401 U. S.
753 .

															[ Footnote 14 ]

															It does not necessarily follow, however, as a matter of either
logic or law, that the agency had no duty to obey them.

															"Where the rights of individuals are affected, it is incumbent
upon agencies to follow their own procedures. This is so even where
the internal procedures are possibly more rigorous than otherwise
would be required." Moton v. Ruiz, 415 U. S. 199 , 415 U. S. 235 . See, e.g., United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (holding habeas corpus relief proper where Government regulations
"with the force and effect of law" governing the procedure to be
followed in processing and passing upon an alien's application for
suspension of deportation were not followed); Service v.
Dulles, 354 U. S. 363 (invalidating Secretary of State's dismissal of an employee where
regulations requiring approval of the Deputy Undersecretary and
consultation of full record were not satisfied); Vitarelli v.
Seaton, 359 U. S. 535 (invalidating dismissal of Interior Department employee where
regulations governing hearing procedures for national security
dismissals were not followed). See also Yellin v. United
States, 374 U. S. 109 (reversing contempt conviction where congressional committee had
not complied with its rules requiring it to consider a witness'
request to be heard in executive session).

															[ Footnote 15 ]

															In Raley v. Ohio, 360 U. S. 423 , 360 U. S.
437 -438, we held that due process precluded the
conviction of individuals for refusing to answer questions asked by
a state investigating commission which itself had erroneously
provided assurances, express or implied, that the defendants had a
privilege under state law to refuse to answer. And in Cox v.
Louisiana, 379 U. S. 559 , the
Court held that an individual could not be punished for
demonstrating "near" a courthouse where the highest police
officials of the city had advised the demonstrators that they could
meet where they did without violating the statutory proscription
against demonstrations "near" the courthouse. Cf. Arizona
Grocery Co. v. Atchison, T. & S.F. R. Co., 284 U.
S. 370 (holding invalid Interstate Commerce Commission's
retroactive application of new rate); Columbia Broadcasting
System, Inc. v. United States, 316 U.
S. 407 , 316 U. S. 422 (agency regulations on which individuals are "entitled to rely"
bind agency and are therefore ripe for judicial review). The
underlying rationale of the foregoing cases is plainly inapplicable
here.

															[ Footnote 16 ]

															The Act was originally passed in 1946, 60 Stat. 237, and is
codified at 5 U.S.C. § 551 et seq. and § 701 et
seq. [ Footnote 17 ]

															5 U.S.C. § 706.

															[ Footnote 18 ] Cf. Board of Curators, Univ. of Mo. v. Horowitz, 435 U. S. 78 , 435 U. S. 92 n.
8; Vitarelli v. Seaton, supra at 359 U. S. 547 (Frankfurter, J., concurring in part and dissenting in part) ("This
judicially evolved rule of administrative law is now firmly
established and, if I may add, rightly so. He that takes the
procedural sword shall perish with that sword").

															Even as a matter of administrative law, however, it seems clear
that agencies are not required, at the risk of invalidation of
their action, to follow all of their rules, even those properly
classified as "internal." In American Farm Lines v. Black Ball
Freight Service, 397 U. S. 532 , 397 U. S. 538 ,
for example, ICC rules requiring certain information to be included
in applications had not been followed. This Court rejected the
argument that the agency action was therefore invalid, concluding
that the Commission was

															"entitled to a measure of discretion in administering its own
procedural rules in such a manner as it deems necessary to resolve
quickly and correctly urgent transportation problems."

															[ Footnote 19 ] See App. in Service v. Dulles, O.T. 1956, No.
407, p. 40; App. in Vitarelli v. Seaton, O.T. 1958, No.
101, p. 7. The complaints in both of these cases invoked 5 U.S.C. §
1009 (1964 ed.), the then-applicable APA judicial review
provision.

															[ Footnote 20 ] See Linkletter v. Walker, 381 U.
S. 618 , 381 U. S. 633 , 381 U. S.
636 -637; Mapp v. Ohio, 367 U.
S. 643 , 367 U. S. 656 ; Elkins v. United States, 364 U. S. 206 , 364 U. S.
217 .

															[ Footnote 21 ]

															Since no statute was violated by the recording of respondent's
conversations, this Court's decision in Miller v. United
States, 357 U. S. 301 , is
likewise inapplicable.

															[ Footnote 22 ]

															The Government argues that Fed.Rule Evid. 402 and 18 U.S.C. §
3501 prohibited the Court of Appeals from exercising whatever
supervisory power it might otherwise have to suppress evidence of
respondent's statements to Yee. Brief for United States 42.

															[ Footnote 23 ] See Amsterdam, Perspectives on the Fourth Amendment, 58
Minn.L.Rev. 349, 416-428 (1974); McGowan, Rule-Making and the
Police, 70 Mich.L.Rev. 659 (1972).

															[ Footnote 24 ] See F. Cooper, Administrative Agencies and the Courts
289-290 (1951) ("[T]oo rigid an application of the doctrine
prohibiting disregard of procedural rules would encourage the
tendency of some agencies to proceed almost without rules. The
doctrine should not be pressed so far as to induce agencies to
adopt the protective device of promulgating procedural rules so
vague in nature as to make it impossible to show a violation of the
rules").

															[ Footnote 25 ] See IRS Manual � 652.1(3) (in effect Sept.1976) ("Any
employee who knowingly violates or in any way knowingly
countenances violation of this policy will be subject to
disciplinary action and may be removed from the Service").

															MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.

															The Court today holds that evidence obtained in patent violation
of agency procedures is admissible in a criminal prosecution. In so
ruling, the majority determines both that the Internal Revenue
Service's failure to comply with its own mandatory regulations
implicates no due process interest, and that the exclusionary rule
is an inappropriate sanction for such noncompliance. Because I can
subscribe to neither proposition, and because the Court's decision
must inevitably erode respect for law among those charged with its
administration, I respectfully dissent. I In a long line of cases beginning with Bridges v.
Wixon, 326 U. S. 135 , 326 U. S.
152 -153 (1945), this Court has held that "one under
investigation . . . is legally entitled to insist upon the
observance of rules" promulgated by an executive or legislative
body for his protection. See United States v. Nixon, 418 U. S. 683 , 418 U. S.
695 -696 (1974); Morton v. Ruiz, 415 U.
S. 199 , 415 U. S. 235 (1974); Yellin v. United States, 374 U.
S. 109 (1963); Vitarelli v. Seaton, 359 U. S. 535 (1959); Service v. Dulles, 354 U.
S. 363 (1957); United States ex rel. Accardi
v. Page 440 U. S. 758 Shaughnessy, 347 U. S. 260 (1954). Underlying thee decisions is a judgment, central to our
concept of due process, that government officials, no less than
private citizens, are bound by rules of law. [ Footnote 2/1 ] Where individual interests are implicated,
the Due Process Clause requires that an executive agency adhere to
the standards by which it professes its action to be judged. See Vitarelli v. Seaton, supra, at 359 U. S. 547 (Frankfurter, J., concurring in part and dissenting in part).

															Despite these well established precedents and the IRS's conceded
failure to abide by mandatory investigative regulations, the Court
finds no due process violation on the facts of this case. In
reaching its conclusion, the majority relies on the absence of
constitutional or statutory underpinnings for Page 440 U. S. 759 the regulations and on respondent's inability to establish
prejudice from their circumvention. This approach draws support
neither from our prior holdings nor from the principles on which
the Due Process Clause is founded.

															This Court has consistently demanded governmental compliance
with regulations designed to safeguard individual interests even
when the rules were not mandated by the Constitution or federal
statute. In United States ex rel. Accardi v. Shaughnessy,
supra, the Court granted a writ of habeas corpus where the
Attorney General had disregarded applicable procedures for the
Board of Immigration Appeals' suspension of deportation orders.
Although the Attorney General had final power to deport the
petitioner and had no statutory or constitutional obligation to
provide for intermediate action by the Board, this Court held that
while suspension procedures were in effect, "the Attorney General
denies himself the right to sidestep the Board or dictate its
decision." 347 U.S. at 347 U. S. 267 .
On similar reasoning, the Court, in Service v. Dulles, vacated a Foreign Service officer's national security discharge.
While acknowledging that the Secretary of State was not obligated
to adopt "rigorous substantive and procedural safeguards," the
Court nonetheless held that "having done so he could not, so long
as the Regulations remained unchanged, proceed without regard to
them." 354 U.S. at 354 U. S. 388 .
Similarly, in Vitarelli v. Seaton, we demanded adherence
to Department of the Interior employee discharge procedures that
were "generous beyond the requirements that bind [the] agency." 359
U.S. at 359 U. S. 547 (Frankfurter, J., concurring in part and dissenting in part). And
most recently, in Morton v. Ruiz, we declined to permit
the Bureau of Indian Affairs to depart from internal rules for
establishing assistance eligibility requirements although the
procedures were "more rigorous than otherwise would be required."
415 U.S. at 415 U. S. 235 . See also United States v. Nixon, supra; Yellin v. United
States, supra; 326 U. S. Page 440 U. S. 760 Wixon, 326 U. S. 135 (1945). [ Footnote 2/2 ] Thus, where
internal regulations do not merely facilitate internal agency
housekeeping, cf. American Farm Lines v. Black Ball Freight
Service, 397 U. S. 532 , 397 U. S. 538 (1970), [ Footnote 2/3 ] but rather
afford significant procedural protections, we have insisted on
compliance.

															That the IRS regulations at issue here extend such protections
is beyond dispute. As this Court recognized in Berger v. New
York, 388 U. S. 41 , 388 U. S. 63 (1967), "[f]ew threats to liberty exist which are greater than that
posed by the use of eavesdropping devices." An agency's
self-imposed constraints on the use of these devices, no less than
limitations mandated by statute or by the Fourth Amendment, operate
to preserve a "measure of privacy and a sense of personal security"
for individuals potentially subject to surveillance. See United
States v. White, 401 U. S. 745 , 401 U. S. 790 (1971) (Harlan, J., dissenting) .

															Moreover, the history of the IRS authorization requirements
clearly establishes that they were intended to protect privacy
interests. The regulations were an outgrowth of investigations in
1965 and 1966 by a Subcommittee of the Senate Judiciary Committee
concerning surveillance techniques of federal agencies. Testimony
at Subcommittee hearings revealed that IRS agents had made
extensive unauthorized use of a wide variety of eavesdropping
techniques. Page 440 U. S. 761 Hearings on S.Res. 9 before the Subcommittee on Administrative
Practice and Procedure of the Senate Committee on the Judiciary,
89th Cong., 1st and 2d Sess., 1206-1208, 1762-1763, 1774-1777,
1828-1830, 1923-1935, 1999-2003 (1965-1966) (hereinafter S.Res. 39
Hearings). [ Footnote 2/4 ] Among the
agency practices that the Subcommittee found offensive was the
monitoring of certain conversations between taxpayers and IRS
agents wired for sound. See, e.g., id. at 2017, 2078. Of
more general concern was the agency's total failure to detect or
disapprove violations of its own internal rules. Evidence before
the Subcommittee indicated that supervisory personnel had condoned
the use of illegal wiretaps, see id. 1517, 1546-1548,
while upper level officials had remained ignorant of widespread
departures from prescribed policies. See id. 1118,
1124-1128, 2005.

															In response to that congressional investigation, the IRS
convened a special Board of Inquiry to review agency surveillance
practices and to recommend new procedures. Both the scope of the
new regulations and the IRS Commissioner's representations to the
Senate Subcommittee demonstrate that the agency was concerned not
only with preventing "violation[s] of a person's constitutional or
statutory rights," but also with "carefully control[ling]" certain
investigatory techniques which, "although legal, nevertheless tend
to be offensive to the public conscience." Id. at 1122
(testimony of Commissioner Cohen). The Commissioner further assured
the Subcommittee that detailed regulations adopted by the agency in
1967 would guarantee such control. Id. at 1122-1126; CCH
[1967] Stand.Fed.Tax Rep. � 6711, p. 71,756. Those regulations,
recodified without substantial modification, are Page 440 U. S. 762 the basis of the instant proceedings. Compare Internal
Revenue Service Manual � 652.22 (Sept.1975) with Internal
Revenue Service Manual Supplement, Wiretapping and Electronic
Eavesdropping, No. 93G-70 (July 10, 1967).

															Against this historical backdrop, it is inarguable that these
IRS regulations affect substantial individual interests. Indeed,
the Court does not suggest otherwise. Rather, it places weight on
respondent's failure to establish prejudice from agency illegality.
Because Caceres cannot demonstrate that he "reasonably relied" on
the regulations, ante at 440 U. S. 752 ,
or that the failure to obtain proper authorization had any
"discernible effect" on the IRS's decision to monitor his
conversations with Agent Yee, ibid., the Court concludes
that the agency's action implicates no due process interest. Such
an approach is fundamentally misconceived. By assessing
respondent's claim in terms of prejudice, the Court disregards not
only its prior holdings, but also the principles of governmental
regularity on which they rest.

															To make subjective reliance controlling in due process analysis
deflects inquiry from the relevant constitutional issue, the
legitimacy of government conduct. If an individual is entitled only
to the process that he subjectively believes is due, an agency
could disregard its investigative rules with impunity provided it
did so with consistency. For no person could "reasonably rely," ibid., on rules that were generally ignored. And to the
extent that the majority views reliance as critical in an
investigative context, it effectively reduces mandatory regulations
to hortatory policies. Presumably the only persons with occasion to
discover breaches of investigative rules will be those facing
criminal prosecution. Such individuals will rarely, if ever, be
able to establish that they planned their conduct with internal
agency regulations in view. [ Footnote
2/5 ] Page 440 U. S. 763 Moreover, the Court's focus on subjective reliance is
inconsistent with our prior decisions enforcing due process
guarantees. In Bridges v. Wixon, 326 U.
S. 135 (1945), we vacated a deportation order because
the Immigration and Naturalization Service had failed to observe
regulations requiring that witness statements be made under oath,
even though the petitioner's statements were not involved and he
had not invoked the regulations at his deportation hearing. So too,
in Yellin v. United States, 374 U.
S. 109 (1963), this Court overturned the defendant's
contempt conviction for refusal to testify before Congress where
the House Committee on Un-American Activities had ignored rules
requiring it to consider formally the injuries to a witness'
reputation that might attend public hearings. Yet, as the dissent
in Yellin pointed out, the defendant had predicated his
refusal to testify on First Amendment grounds, not on the public
nature of the proceedings, and had in "no way indicated that an
executive session would have made any difference in his willingness
to answer questions." Id. at 374 U. S. 141 (WHITE, J., dissenting).

															Nor has this Court required, as it does today, that procedural
irregularity affect the outcome of the governmental action at
issue. For example, there was no suggestion in Yellin that, had the Committee formally considered the injury to the
defendant's reputation, it would have convened an executive
session. Indeed, the Committee Chairman had testified that this was
precisely the kind of case where a public hearing was appropriate. Id. at 374 U. S.
117 -118, n. 6. Nonetheless, the Court, even as it
expressed doubt that procedural compliance Page 440 U. S. 764 would have made a difference, insisted that the defendant was
entitled to no less. Id. at 374 U. S. 121 .
[ Footnote 2/6 ]

															Similarly, the petitioner in Vitarelli v Seaton, 359 U. S. 535 (1959), was in no meaningful sense prejudiced by the Department of
the Interior's departure from regulations governing employee
discharges for national security reasons. After the petitioner
filed suit, he received a revised notice of dismissal which
complied with all applicable regulations. Despite the petitioner's
inability to demonstrate that adherence to agency regulations would
have affected the decision to discharge him, this Court ordered
reinstatement.

															Implicit in these decisions, [ Footnote 2/7 ] and in the Due Process Clause itself, is
the premise that regulations bind with equal force whether or not
they are outcome determinative. As its very terms make manifest,
the Due Process Clause is, first and foremost, a guarantor of
process. It embodies a commitment to procedural regularity
independent of result. To focus on the conduct of individual
defendants, rather than on that of the government, necessarily
qualifies this commitment. If prejudice becomes critical in
measuring due process obligations, individual officials may simply
dispense with whatever procedures are unlikely to prove dispositive
in a given case. Thus, the majority's analysis invites the very
kind of capricious and unfettered decisionmaking that the Due
Process Clause in general and these regulations in particular were
designed to prevent. Page 440 U. S. 765 Any fair application of our prior holdings mandates a different
result. When the Government engages to protect individual
interests, it may not constitutionally abrogate that commitment at
its own convenience. I would hold the IRS to its surveillance
authorization procedures regardless of whether a litigant can
establish prejudice from their circumvention. II Having found a due process violation, I would require that the
fruits of that illegality be suppressed in respondent's criminal
prosecution. Mapp v. Ohio, 367 U.
S. 643 (1961). Accordingly, under my analysis, it would
be unnecessary to consider the scope of our supervisory powers,
discussed in 440 U. S. Because, however, the Court addresses that issue, I must register
my profound disagreement with both its reasoning and ultimate
conclusion.

															In determining that the exclusionary rule is an unwarranted
sanction for the agency misconduct here, the Court attaches great
significance to the agents' ostensible "good faith" in construing
their own regulations to permit "emergency" surveillance of
respondent in January and February, 1975. Ante at 440 U. S. 757 , 440 U. S. 756 .
The record does not admit of such a charitable characterization.
IRS Agent Yee alleged that respondent first attempted to bribe him
in March, 1974. The IRS recorded a conversation between Caceres and
Yee that same month. No further contact with Caceres concerning the
bribe occurred until January, 1975, and no reasons have been
offered for Agent Yee's failure to initiate surveillance during
that 10-month hiatus. Nor does the record reflect any justification
for the agency's failure to obtain approval for monitoring between
the January 27 and January 31 meetings, to schedule meetings so as
to permit timely authorization requests, or to process the January
31 authorization request expeditiously. In positing that the agents
had a colorable basis for believing that the January 31 and
February 6 meetings Page 440 U. S. 766 constituted "emergency situation[s]," see ante at 440 U. S.
756 -757, the Court simply ignores the findings below
that Agent Yee had absolute control over the scheduling of those
conversations, and that any exigency was solely of the Government's
own making. [ Footnote 2/8 ] This is
plainly not an instance in which law enforcement officers have
failed to grasp the nuances of constitutional doctrine in an area
where the Court itself is sharply divided. Cf. Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.
S. 388 , 403 U. S. 417 (1971) (BURGER, C.J., dissenting); Stone v. Powell, 428 U. S. 465 , 428 U. S.
538 -540 (1976) (WHITE, J., dissenting). Rather, the
record demonstrates a breach of unambiguous and unquestionably
applicable procedures.

															Moreover, even assuming the good faith which the agency has
failed to demonstrate, that consideration should not figure in our
present analysis. Restricting application of the exclusionary rule
to instances of bad faith would invite law enforcement officials to
gamble that courts would grant absolution for all but the most
egregious conduct. Since judges do not lightly cast aspersions on
the motives of government officials, the suppression doctrine would
be relegated to those rare circumstances where a litigant can prove
insolent or calculated indifference to agency regulations. As we
have noted in the context of Fourth Amendment violations, "[i]f
subjective good faith alone were the test, . . . the people would
be secure . . .' only in the discretion of the police." Beck v. Ohio, 379 U. S. 89 , 379 U. S. 97 (1964). Just as intent has not been determinative in Fourth
Amendment cases, see, e.g., Mincey v. Arizona, 437 U. S. 385 (1978); United States v. Brignoni-Ponce, 422 U.
S. 873 (1975); Almeida-Sanchez v. United
States, 413 U. S. 266 (1973), it should not be material here. The Court next suggests that suppression is unnecessary in this
case because "the Executive itself has provided for Page 440 U. S. 767 internal sanctions in cases of knowing violations of the
electronic-surveillance regulations." Ante at 440 U. S. 756 (footnote omitted). Significantly, however, the Court does not
assert that the sanctions which exist in theory are effectively
employed in practice. While "[s]elf-scrutiny is a lofty ideal," Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 42 (1949) (Murphy, J., dissenting), nothing in the record before us
indicates why IRS disciplinary procedures should enjoy the Court's
special confidence. Quite the contrary, the circumstances
surrounding the conception and continued operation of IRS
authorization requirements illustrate a persistent indifference
toward enforcement. [ Footnote 2/9 ]
And abdication by the courts is unlikely to increase the agency's
vigilance in disciplining or even discovering Page 440 U. S. 768 violations. To remove a defendant's incentive for exposing
evasions or disingenuous constructions of applicable rules will
inevitably diminish the agency's interest in self-monitoring.
[ Footnote 2/10 ]

															Finally, the Court declines to order suppression because

															"a rigid application of an exclusionary rule to every regulatory
violation could have a serious deterrent impact on the formulation
of additional standards to govern prosecutorial and police
procedures." Ante at 440 U. S.
755 -756. No support is offered for that speculation. In
fact, all available evidence is to the contrary. Since 1967, the
IRS has retained regulations requiring agents to give Miranda
warnings in noncustodial settings despite Court of Appeals
decisions suppressing statements taken in violation of those rules. United States v. Sourapas, 515 F.2d 295, 298 (CA9 1975); United States v. Leahey, 434 F.2d 7 (CA1 1970); United
States v. Heffner, 420 F.2d 809 (CA4 1969). Significantly, the
Court points to no instance in which an agency has withdrawn the
procedural protections made meaningful by decisions such as Bridges v. Wixon, 326 U. S. 135 (1945), United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954), Service v. Dulles, 354 U.
S. 363 (1957), and Vitarelli v. Seaton, 359 U. S. 535 (1959).

															Even if the majority's concern about inhibiting agency
self-regulation were more solidly grounded, it could not justify
the result in this case. Under today's decision, regulations Page 440 U. S. 769 largely unenforced by the IRS will be unenforceable by the
courts. [ Footnote 2/11 ] I cannot
share the Court's apparent conviction that much would be lost if
the agency were to withdraw such rules in protest against judicial
enforcement. Presumably Congress, which has been repeatedly
dissuaded by the IRS from legislating in the area, [ Footnote 2/12 ] would then step into the
breach. In the event of congressional action, this Court could not
so cavalierly tolerate unauthorized electronic surveillance. See Miller v. United States, 357 U.
S. 301 (1958). [ Footnote
2/13 ] Particularly where, as here, agency regulations were
designed to stand in the place of legislative action, we should not
hesitate to give them similar force and effect.

															In my judgment, the Court has utterly failed to demonstrate why
the exclusionary rule is inappropriate under the circumstances
presented here. Equally disturbing is the majority's refusal even
to acknowledge countervailing considerations. Quite apart from
specific deterrence, there are significant values served by a rule
that excludes evidence secured by lawless enforcement of the law.
Denying an agency the fruits of noncompliance gives credibility to
the due Page 440 U. S. 770 process and privacy interests implicated by its conduct.
[ Footnote 2/14 ] Also, and perhaps
more significantly, exclusion reaffirms the Judiciary's commitment
to those values. Preservation of judicial integrity demands that
unlawful intrusions on privacy should "find no sanction in the
judgments of the courts." Weeks v. United States, 232 U. S. 383 , 232 U. S. 392 (1914). See Elkins v. United States, 364 U.
S. 206 , 364 U. S.
222 -223 (1960). Today's holding necessarily confers upon
the Judiciary a "taint of partnership in official lawlessness." United States v. Calandra, 414 U.
S. 338 , 414 U. S. 357 (1974) (BRENNAN, J., dissenting). I decline to participate in that
venture.

															I would affirm the judgment of the court below.

															[ Footnote 2/1 ]

															Although not always expressly predicated on the Due Process
Clause, these decisions are explicable in no other terms. The
complaints in only two of the cases, Vitarelli v. Seaton, 359 U. S. 535 (1959), and Service v. Dulles, 354 U.
S. 363 (1957), invoked the Administrative Procedure Act, see ante at 440 U. S. 754 n.19. In neither of these cases was the Act even mentioned in the
Court's opinions. Rather, Vitarelli followed Service,
see 359 U.S. at 359 U. S.
539 -540, which, in turn, had relied on United States
ex rel. Accardi v. Shaughnessy, 347 U.
S. 260 (1954). See 354 U.S. at 354 U. S. 373 , 354 U. S.
386 -387. Both Accardi and its predecessor, Bridges v. Wixon, 326 U. S. 135 (1945), were habeas corpus cases. And Yellin v. United
States, 374 U. S. 109 (1963), which involved criminal contempt sanctions, followed Accardi. Thus, it is clear that this line of precedent
cannot be dismissed as federal administrative law. Cf. Board of
Curators, Univ. of Mo. v. Horowitz, 435 U. S.
78 , 435 U. S. 92 n.
8 (1978) (dictum). To the contrary, these decisions have been
uniformly, and I believe properly, interpreted as resting on due
process foundations. See United States v. Sourapas, 515
F.2d 295, 298 (CA9 1975); Konn v. Laird, 460 F.2d 1318
(CA7 1972); Antonuk v. United States, 445 F.2d 592, 595
(CA6 1971); Hollingsworth v. Balcom, 441 F.2d 419, 421
(CA6 1971); United States v. Leahey, 434 F.2d 7, 9 (CA1
1970); United States v. Lloyd, 431 F.2d 160, 171 (CA9
1970); Government of Canal Zone v. Brooks, 427 F.2d 346,
347 (CA5 1970); United States v. Heffner, 420 F.2d 809,
811-812 (CA4 1969); cf. Schatten v. United States, 419
F.2d 187, 191 (CA6 1969). See generally Berger, Do
Regulations Really Bind Regulators, 62 Nw.U.L.Rev. 137 (1967).

															[ Footnote 2/2 ]

															At issue in Bridges were regulations requiring that
witness statements be made under oath and signed in order to be
admissible in deportation hearings. As the Court correctly points
out, ante at 440 U. S. 749 ,
those rules were designed as "safeguards against essentially unfair
procedures." 326 U.S. at 326 U. S. 153 .
However, there is no basis in precedent or in the language of Bridges itself for the majority's further intimation that
the Due Process Clause "mandated" such protective regulations. Ante at 440 U. S.
749 .

															[ Footnote 2/3 ] American Farm Lines v. Black Ball Freight Service involved rules promulgated to assist an agency in compiling
information for internal decisionmaking. As the American
Farm Court noted in distinguishing Vitarelli v. Seaton,
supra, these rules were not "intended primarily to confer
important procedural benefits upon individuals in the face of
otherwise unfettered discretion. . . ." 397 U.S. at 397 U. S.
538 -539.

															[ Footnote 2/4 ]

															As summarized by Senator Morse:

															"The record reveals that illegal wiretapping by the Internal
Revenue Service is not an occasional action of an overzealous
agent, but is the logical and reasonable consequence of a well
defined program. . . ."

															Hearings on S.Res. 928 before the Subcommittee on Administrative
Practice and Procedure of the Senate Committee on the Judiciary,
90th Cong., 1st Sess., 29 (1967).

															[ Footnote 2/5 ]

															Just as we do not expect defendants in Fourth Amendment cases to
demonstrate that, but for the warrant requirement, they would have
acted otherwise, we should not demand that those in respondent's
position establish that they predicated their action on the
existence of internal regulations. In both contexts, the rationale
for mandating government compliance with procedural safeguards is
the same: to prevent law enforcement officials from exercising
unchecked discretion where substantial privacy interests are
involved. And in neither case is a requirement of subjective
reliance consistent with that objective.

															[ Footnote 2/6 ]

															The Yellin Court, 374 U.S. at 374 U. S. 121 ,
was equally dubious that agency adherence to its regulations would
have affected the Attorney General's ultimate decision to deport in United States ex rel. Accardi v. Shaughnessy, 347 U.S. at 347 U. S.
267 .

															[ Footnote 2/7 ]

															In part, these decisions also reflect a prudent reluctance to
speculate how another branch of government would have acted under
different circumstances. Because the Court has so little apparent
difficulty in hypothesizing that compliance would not have mattered
in this case, see ante at 440 U. S.
752 -753, 440 U. S. 757 ,
it has adopted an approach that may well prove problematic in the
next. Not all circumstances affecting agency decisions will so
readily lend themselves to counterfactual analysis.

															[ Footnote 2/8 ] See 545 F.2d 1182, 1187 (CA9 1976). For example, when
Agent Yee proposed a meeting for the following day, Caceres
responded: "I'll arrange my schedule to your convenience." App.
15.

															[ Footnote 2/9 ]

															With respect to IRS officials' enthusiasm for self-discipline
before and during the Senate investigation, Senator Long stated
that "generally speaking, they have found wrongdoing only when the
subcommittee has pointed directly and explicitly to it." S.Res. 39
Hearings 1118.

															Since that investigation, the agency's performance has remained
less than exemplary. In 1974, an internal audit of electronic
surveillance within the IRS Intelligence Division revealed that 18
agents had engaged in 35 to 40 "instances" of improper monitoring
within the previous year, with an "instance" defined to include as
many as 15 different phone calls. Oversight Hearings into the
Operations of the IRS before a Subcommittee of the House Committee
on Government Operations, 94th Cong., 1st Sess., 42431, 450 (1975)
(hereinafter Oversight Hearings). None of these employees were
dismissed or demoted. In only one case did violations even actuate
suspension. There, an employee who monitored his home telephone for
"personal reasons completely unrelated to his official duties" was
suspended for five days. Id. at 451; Reply Brief for
United States 17, and n. 9. Four other employees received written
reprimands. Eight received oral admonitions, three of which were
confirmed in writing and none of which became part of the agents'
personnel folders. Oversight Hearings 451, 453. The Service took no
action in five cases. Id. at 451.

															Such nominal sanctions hardly justify the Court's faith in
agency self-restraint, particularly given the Government's failure
to identify a single instance of internal disciplinary action by
the IRS since 1974. See Reply Brief for United States
117.

															[ Footnote 2/10 ]

															Professor Amsterdam, whom the majority cites for the proposition
that regulations governing investigatory conduct

															"may well provide more valuable protection to the public at
large than the deterrence flowing from the occasional exclusion of
items of evidence," ante at 440 U. S. 755 ,
and n. 23, submits in the same article that federal review of
compliance with such regulations through the exclusionary rule
"remains essential." Amsterdam, Perspectives on the Fourth
Amendment, 58 Minn.L.Rev. 349, 429 (1974). As he maintains, the
suppression doctrine provides the "necessary occasions" for review
of administrative problems and circumventions, and affords the
"only available incentive" for law enforcement officials to make
internal rules clear and incorporate them in personnel training. Ibid. [ Footnote 2/11 ] See n 9, supra. Significantly, the Court does not suggest APA
litigation as a plausible alternative means of enforcing
investigative regulations. Unless a criminal prosecution is
initiated, an individual is unlikely to discover that he was
subject to unauthorized surveillance. And it strains credulity to
suppose that an individual under criminal indictment would assume
the expense, not to mention the risks of antagonizing government
officials, that would attend APA proceedings. Cf. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal
Cases, 45 N.Y.U.L.Rev. 785, 787 (1970).

															[ Footnote 2/12 ] See S.Res. 39 Hearings 1122-1124, 1144 (testimony of
Commissioner Cohen); Oversight Hearings 401 (testimony of
Commissioner Alexander); id. at 448 (testimony of
Assistant Commissioner for Compliance Wolfe).

															[ Footnote 2/13 ]

															In Miller, the Court suppressed evidence obtained after
District of Columbia police forcibly entered an apartment without
announcing their authority and purpose as required by a federal
statute made applicable in the District by a ruling.

															[ Footnote 2/14 ] See Oaks, Studying the Exclusionary Rule in Search and
Seizure, 37 U.Chi.L.Rev. 665, 756 (1970) (by demonstrating that
society attaches serious consequences to unlawful infringement of
privacy interests, "the exclusionary rule invokes and magnifies the
moral and educative force of the law. Over the long-term this may
integrate some fourth amendment ideals into the value system or
norms of behavior of law enforcement agencies").

Summary: The Supreme Court held that the IRS's failure to follow its internal regulations when monitoring face-to-face conversations between taxpayers and agents did not require the exclusion of evidence obtained through such monitoring. The Court found that neither the Constitution nor federal law mandated compliance with the IRS regulations, and thus, there was no legal basis to exclude the evidence obtained through the recordings.