Colorado up­holds tax pri­vacy for un­doc­u­mented work­ers

The Washington Times Weekly - - Politics - BY VA­LERIE RICHARDSON

DEN­VER | The Colorado Supreme Court ruled Dec. 14 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, rul- ing 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 76page 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.”

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