Offenses by Officers & Employees of U.S. Page5

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Although Michael does grapple with the apparent conflict between the Mandamus and Venue Act, 28 U.S.C. §1361, and the Anti-Injunction act, it does not support Plaintiff's position. The Michael court found that the Mandamus Act did "not override the Anti-Injunction Act." Id. at 506. The Court held that in order to prevail, the plaintiff had to "show either that its claim does not implicate the Anti-Injunction Act or that it fits within the narrow exception to that act." Id. The Court in Michael then went on to enumerate the factors that must be present in order to invoke the Enochs exception: (1) "irreparable injury, the essential prerequisite for injunctive relief in any case," and (2) "certainty of success on the merits." Id. In reversing the district court's dismissal of Plaintiff's claim, the Michael court ultimately found that the plaintiff had established irreparable injury and had established that, "under the most liberal view of the law and facts, the United States cannot establish its claim." Id.; see also Davidson, supra. (denying injunctive relief based on the Anti-Injunctive Act because it could not be said that the government would be unable to establish the validity of assessments made and taxpayers did not establish lack of legal remedy).

Here, Plaintiff has not established that his claim does not implicate the Anti-Injunction Act or that the claim fits within the narrow exception to that Act. See Bowers v. United States [70-2 USTC ¶9560], 423 F.2d 1207 (5th Cir. 1980) (dismissing taxpayer's suit holding that he did not establish that his case fell within the judicial exception to the Anti-Injunction Act); see also Keese v. United States [86-1 USTC ¶9389], 632 F.Supp. 85 (S.D. Tex 1985) (dismissing a suit brought by an income tax preparer finding that the preparer failed to establish an irreparable injury beyond conclusory allegations that the IRS was injuring her business and reputation or that the government would under no circumstances prevail). Recognizing that the Federal Rules of Civil Procedure prescribe a liberal pleading standard, the Court GRANTS Plaintiff leave to Amend his Complaint in accordance with this Order so that he may clarify what equitable relief, if any, he may be entitled to. If Plaintiff desires to submit an amended complaint, it must be filed within fifteen (15) days of receipt of this Order.

The Court recognizes, as delineated above, that certain exceptions exist to allow equitable relief despite the Anti-Injunction Act's prohibition of such relief. The injunctive relief, however, when granted, is always in conjunction with a claim of some wrongdoing. In a typical case, the wrongdoing would involve the levy of an unlawful tax assessment by the IRS against a taxpayer. If this is the case here, Plaintiff, in his second amended complaint needs to identify the tax assessment that was wrongfully assessed so that the Court can address Plaintiff's claim as it relates to that allegedly unlawful action. As drafted, Count One of Plaintiff's Amended Complaint references the general factual scenario and mentions a laundry list of alleged statutory violations: Circular 230 of the Internal Revenue Code, Sections 6103, 7214, 7431, 7435, 7521(b) and (c), and 7605(b) of the Internal Revenue Code, various rules for practice before the Internal Revenue Service, as well as IRS internal policies regarding the improper inspection and disclosure of Plaintiff's income information, the unauthorized maintenance of files on Plaintiff, the illegal interview of Plaintiffs employees, and the improper enticement of Plaintiff's representatives. Count One does not, however, allege, or specify in any way what activity constitutes a violation of the statutes listed therein.

Accordingly, the Court GRANTS Defendants' Motion to Dismiss Plaintiff's claim for injunctive relief in Count One but grants Plaintiff leave to amend his Complaint a second time.

2. Plaintiff's Claim pursuant to 26 U.S.C. §7431

Counts One, Two and Three of Plaintiff's Complaint, as amended, allege the violation of 26 U.S.C. §7431. Section 7431 states that if any officer or employee of the United States knowingly or negligently inspects or discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103, such taxpayer may bring a civil action for damages against the United States . 26 U.S.C. §7431. Section 6103 states that no officer or employee of the United States shall disclose any return or return information obtained by him in any manner in connection with his service as such officer or an employee. 26 U.S.C. §6103.

Defendants argue that Plaintiff fails to state a claim for which relief can be granted because Plaintiff (1) has not identified the specific return or return information that was unlawfully disclosed, and (2) has not alleged the disclosure of any information that would be defined as "return information." Defendants argue that Plaintiff can not state a claim under Section 7431 for the disclosures made with respect to Joan Martin as the statute allows recovery only for information pertaining to the taxpayer-litigant, Plaintiff in this case, and not an "associate" of Plaintiff.

Plaintiff argues generally that the Federal Rules of Civil Procedure reject the notion that pleadings should be construed strictly so that judgments are rendered on the skill of a litigant in drafting pleadings rather than on the substance of the case. Plaintiff maintains that construed liberally, his Complaint sufficiently states a claim for which relief can be granted. In addition to this general argument, Plaintiff specifically argues that Section 7431 provides a cause of action for the unlawful inspection or disclosure of returns and that his Complaint has sufficiently stated a claim under both theories.

Defendants' Motion does not address Plaintiff's claim of an unlawful inspection. Nor does the sole case cited by Defendants address the unlawful inspection prong of a claim pursuant to Section 7431. The Court notes that 26 U.S.C. 7431 was amended in 1997 to include liability for unlawful inspection as well as the already existing unlawful disclosure. See 26 U.S.C. 7431 (2000), amended by Taxpayer Browsing Protection Act, PL 105-35,11 Stat. 1104, August 5, 1997 . The decision in the case cited by Defendants was rendered in 1987, many years before this provision was enacted. See Flippo v. United States, 1987 U.S. Dist. LEXIS 16096 (W.D.N.C. May 13,1987).

Pretermitting an examination into the soundness of Defendants argument concerning Plaintiff's claim pursuant to Section 7431 for an unlawful disclosure in violation of 26 U.S.C. §6103, the Court finds that Plaintiff has stated a claim pursuant to Section 7431 for an unlawful inspection in violation of 26 U.S.C. §6103. Accordingly, the Court DENIES Defendants' Motion to Dismiss as it relates to Plaintiff's claim pursuant to 26 U.S.C. §7431.

The Court notes that Count Two of Plaintiff's Amended Complaint is also confusing as to which statutes are alleged to have been violated and which conduct on the part of Defendants comprised these violations. ¹⁰ The Court, therefore, orders Plaintiff to clarify Count Two in accordance with this Order when and if Plaintiff submits an Amended Complaint.

3. Plaintiff's Claim pursuant to 5 U.S.C. §552

One of the violations alleged to have been perpetrated by Defendants listed in Count Three of Plaintiff's Complaint, as Amended, is a violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. §552. Defendants argue that (1) the FOIA does not authorize suit against federal employees or officers and (2) the FOIA does not provide for the recovery of money damages. Defendants also argue that Plaintiff has not alleged that he has exhausted the administrative remedies available to him under the FOIA by submitting an administrative appeal to the appropriate agency officials.

Plaintiff's Response restates that Defendants violated the FOIA and the Privacy Act of 1974, 5 U.S.C. §552(a). ¹¹ The Response does not, however, respond to Defendants valid objections detailed above. Accordingly, the Court finds that Plaintiff's claim pursuant to the FOIA should be dismissed because (1) the FOIA does not authorize suit against federal employees or officers, (2) the FOIA does not provide for the recovery of money damages, and (3) Plaintiff has not alleged that he has exhausted the administrative remedies available to him under the FOIA by submitting an administrative appeal to the appropriate agency officials. Accordingly, the Court GRANTS Defendants' Motion to Dismiss as it relates to Plaintiff's claim pursuant to the FOIA, 5 U.S.C. §552. ¹²

4. Plaintiff's Claim pursuant to 26 U.S.C. §7214 ¹³

Defendants argue that §7214 does not create a private cause of action. See Nordbrook v. United States [2000-1 USTC ¶50,247], 96 F.Supp.2d 944, 948 (D. Ariz. 2000) (dismissing claim pursuant to 26 U.S.C. §7214, finding "no basis for implying a civil cause of action from these federal criminal code provisions"). They argue that the statute is a criminal statute and only the government has the authority to enforce its criminal laws. Plaintiff's Response argues that the Writ of Mandamus and Venue Act confers jurisdiction upon him to bring a suit to move the Court to enforce these provisions. Plaintiff provides no case law and does not elaborate on this claim.

Section 7214 does not grant this Court jurisdiction or waive the Government's sovereign immunity. It merely provides a criminal penalty for the unlawful acts of revenue officers or agents. Plaintiff has failed to state a claim. Accordingly, the Court GRANTS Defendants' Motion to Dismiss all of Plaintiff's claims pursuant to 26 U.S.C. §7214.

5. Plaintiff's Claim pursuant to 26 U.S.C. §7435

Defendants argue that Section 7435 provides a remedy to a taxpayer when an employee of the IRS compromises the determination of a tax due to a taxpayer in exchange for information from a representative about that taxpayer's tax liability. Defendants argue that the purview of the statute does not fit the factual scenario delineated in Plaintiff's Complaint, as amended. Section 7435 provides in relevant part:

(a) In general.--If any officer or employee of the United States intentionally compromises the determination or collection of any tax due from an attorney, certified public accountant, or enrolled agent representing a taxpayer in exchange for information conveyed by the taxpayer to the attorney, certified public accountant, or enrolled agent for purposes of obtaining advice concerning the taxpayer's tax liability, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Such civil action shall be the exclusive remedy for recovering damages resulting from such actions.

26 U.S.C. §7435. Simply put, Defendants point out that Plaintiff's claim pursuant to Section 7435 involves Ms. Joan Martin with whom Plaintiff claims that he is affiliated and Plaintiff's Complaint, as amended, does not allege that Ms. Martin prepared his taxes, or that she was his power of attorney, or that he conveyed any information to her "for purposes of obtaining advice concerning the taxpayer's liability." Id. Defendants do not cite any case law for their proposition. Plaintiff avers that Ms. Martin represented him regarding the assessment of penalties in front of the IRS and Defendants were aware that she represented him.

It is not clear, accepting as true all the allegations contained in the Complaint, as amended, and viewing the allegations therein in the light most favorable to the plaintiff, that no relief could be granted pursuant to 26 U.S.C. §7435. Because there remains a question as to whether Ms. Martin "represented" Plaintiff for purposes of this statute, or in what capacity she represented Plaintiff, it is unclear that Plaintiff's claim does not fall within the purview of this statute. Accordingly, the Court DENIES Defendants' Motion to Dismiss all of Plaintiff's claims pursuant to 26 U.S.C. §7435.

6. Plaintiff's Claim pursuant to 26 U.S.C. §7217

Plaintiff's Complaint, as amended, includes a claim for a violation of 26 U.S.C. §7217. Defendants move to dismiss this claim on the grounds that the statute is only applicable to the President, Vice President, any employee of the executive office of the President, any employee of the executive office of the Vice President, or any individual other than the Attorney General, serving in a position specified in 5 U.S.C. §5312. Plaintiff did not respond to this portion of Defendants' Motion. Section 7217 provides:

It shall be unlawful for any applicable person to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.

26 U.S.C. §7217. The Court agrees with Defendants's position, Section 7217 is not applicable to the present case. Therefore, pretermitting any examination into Plaintiff's doubtful authority to enforce a criminal statute, the Court finds that this statute is inapplicable to the present suit and that Plaintiff has failed to state a claim. Accordingly, the Court GRANTS Defendants' Motion to Dismiss all of Plaintiff's claims pursuant to 26 U.S.C. §7217.

7. Plaintiff's Claims against the individual Defendants

Defendants argue that Plaintiff's claims against the named individual Defendants are, in actuality, claims against the acts those Defendants took in their official capacity as agents of the United States . As such, Defendants argue, Plaintiff's claims are really against the United States and the claims against the individual Defendants' should be dismissed. Plaintiff responds that the individual Defendants are liable under Bivens. ¹⁴ Defendants have not responded to this argument. ¹⁵ Because Defendants' Motion does not address this matter, the Court declines to grant Defendants' Motion at this time. Accordingly, the Court DENIES Defendants' Motion to Dismiss all of Plaintiff's claims against the individual Defendants.

D. Plaintiff's Motion to Compel

Plaintiff moves this Court to compel Defendants to file answers to the Mandatory Interrogatories. Defendants correctly point out that they have filed a Motion to Dismiss and until this Court rules on that Motion, Defendants are not required to answer the Mandatory Interrogatories. Accordingly, the Court DENIES Plaintiff's Motion to Compel [15].

E. Plaintiff's Motion for Oral Argument

Plaintiff requests the opportunity to orally argue the present Motion to Dismiss. The Court perceives no reason to entertain oral arguments. Accordingly, the Court DENIES Plaintiff's Motion for Oral Argument [20].

III. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion to Dismiss. The Court GRANTS Defendants' Motion as it relates to

(1) the claim for injunctive relief found in Count One of the Complaint;

(2) the Freedom of Information Act ("FOIA") claim(s), 5 U.S.C. §552;

(3) the claim(s) pursuant to 26 U.S.C. §7214; and

(4) the claim(s) pursuant to 26 U.S.C. §7217.

These claims are hereby dismissed. Defendants Motion as to all of the other claims is DENIED but the Court grants Defendants leave to refile the present Motion in relation to Plaintiff's remaining claims within fifteen (15) days of receipt of Plaintiff's Amended Complaint.

The Court hereby ORDERS Plaintiff within fifteen (15) days of receipt of this Order to submit an amended complaint that:

(1) specifically states which statutory violation(s) or cause(s) of action are alleged in each of the counts contained in the Amended Complaint; ¹⁶ and

(2) the alleged conduct on the part of Defendants that comprises said violations.

It is so ORDERED.

¹ This Order grants Plaintiff's Motion to Amend his Complaint. As such, the factual background herein reflects and includes the allegations contained in the Complaint, as amended.

² Plaintiff's Complaint, as amended, frequently refers to preparer penalties "against Defendant." The Court believes Plaintiff is meaning to refer to penalties assessed against himself and the Court will, therefore, interpret these allegations as penalties assessed against Plaintiff.

³ Although not explained, the Court assumes a "no change report" is a decision on the part of the Appeals Division finding that, rather than agreeing with the Macon Division's assessment increasing a taxpayer's tax obligation, the assessment of tax should not be changed from the taxpayer's original filing. The "no change report," in effect, overrules a Macon Division assessment that more tax is owed.

⁴ Plaintiff's less than artful explanation of this delaying tactic leaves the Court in a quandary as to what exactly occurred. For the purposes of this Motion, the Court will assume that Plaintiff's Complaint alleges that Defendants, in violation of the IRS Code, purposefully delayed the production of some report so that Plaintiff's clients were somehow deprived of their rights, thereby causing harm to him and his practice.

⁵ Decisions of the former Fifth Circuit rendered prior to October 1, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

⁶ Plaintiff argues that Defendants should be enjoined from auditing any of Plaintiff's clients, any clients of any of Plaintiff's employees or clients of any tax return preparers associated with Plaintiff. Count One requests the Court to order Defendants to transfer all of Plaintiff's clients' existing cases to offices other than the Macon , Georgia Division. The Count further requests the Court to prohibit any of the Defendants from communicating with the IRS agents who may receive the transferred cases. Plaintiff also requests that Defendant Minsico be prohibited from supervising his cases.

⁷ Plaintiff's Complaint states: "Defendants [sic] Plaintiff's clients to file complaints against Plaintiff, interfering with Plaintiff's client relationships, accelerating third party summons to embarrass Plaintiff and his clients when not necessary, and necessary [sic] subjecting taxpayers to unnecessary examinations or investigations." The Court includes language extracted from Plaintiff's Complaint to ensure the Court has correctly summarized his Complaint herein.

⁸ The exceptions enumerated in Subsection (a) are inapplicable here: Section 1015 relates to the tax assessed to gifts or trusts; Sections 6212 and 6213 apply when a taxpayer seeks review by the Tax Court of a notice of deficiency; Section 6225 relates to tax assessed against partnership items; Section 6246 relates to adjustments made regarding partnership items; Section 6331 relates to the authority of the IRS to collect delinquent taxes; Section 6672(b) applies only when the responsible person has filed a bond within thirty days of the assessment to ensure collection; Section 6694 applies to certain return preparer penalty proceedings; Section 7426 applies in certain third-party wrongful levy actions and Section 7429 applies in proceedings to review jeopardy assessments.

⁹ The case law holds that it must be clear that the government cannot win "under the most liberal view of the facts and law." See Smith v. Rich [82-1 USTC ¶9206], 667 F.2d 1228, 1230 (5th Cir. 1982).

¹⁰ For example, Count Two alleges that Defendants illegally contacted Plaintiff's associate but does not state what statute that activity violates. Count Two also alleges violations of Sections 7412 and 7435 but does not specify what activity comprised these violations. Count Two of the Amended Complaint also alleges that Defendants' actions violate the Taxpayer Bill of Rights and give rise to a Bivens claim but does not elaborate on these assertions.

¹¹ Plaintiff's Response conflates the FOIA, 5 U.S.C. §552, with the Privacy Act of 1974, 5 U.S.C. §552a.

¹² Defendants, in footnote, argue that §552a(g)(1)(D) does not apply to the determination of a taxpayer's tax liability. Apparently Defendants read Plaintiff's Complaint to allege a violation of this particular provision. Although the Court understands why Defendants were confused as to what Plaintiff was alleging pursuant to the Privacy Act of 1974, the Court does not find that this argument is sufficient to dismiss Plaintiff's claim pursuant to the Privacy Act of 1974, 5 U.S.C. §552a. To the extent Defendants' Motion is moving to dismiss this claim, it is DENIED.

¹³ Defendants' Motion confuses 26 U.S.C. §7412 with 26 U.S.C. §7214. Plaintiff's Complaint, as amended, refers to both statutes. Because the statutory language cited by Defendants is identical to that found in §7214, the Court will assume that Defendants arguments address the claims by Plaintiff pursuant to that statute even though Defendants cite "§7412" in the title of this section of their Motion and at various other junctures in their argument.

¹⁴ To find liability under Bivens a plaintiff must have proof of an affirmative causal connection between the defendants acting and the alleged constitutional deprivation. See Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983), cert. Denied, Lojuk v. Johnson, 474 U.S. 1067, 106 S.Ct. 822 (1986). A causal connection may be established by proving that the defendant was personally involved in the act or omission that led to a constitutional deprivation. Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). In addition, the doctrine of respondeat superior does not apply in a Bivens action. Lojuk, supra.

¹⁵ Plaintiff's Amended Complaint was filed after Defendants filed the present Motion to Dismiss. The Amended Complaint included an allegation that Defendants were liable under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971).

¹⁶ This Second Amended Complaint should not include allegations for the claims pursuant to 5 U.S.C. §552, 26 U.S.C. §7214 and §7217, dismissed herein. Plaintiff is, however, invited to state with more clarity the claim, if any, for injunctive relief, and ordered to state with more clarity his remaining claims.

 

 

 

[2000-1 USTC ¶50,278] Daniel L. Leveto, and Margaret A. Leveto, Plaintiffs v. Robert A. Lapina, Richard W. Adams, Judy A. Graham, Suzi Hines, "Joe Rivera", and ten unknown IRS agents, Defendants

U.S. District Court, West. Dist. Pa. , 98-143 Erie , 2/5/2000

First Amendment: Seizure of documents.--A veterinarian's First Amendment rights were not violated by the IRS's seizure of documentary evidence from his business. He alleged only legal conclusions that he was denied the use and benefits of his written property with the intent to restrict his freedom of speech and that the investigation resulted from his involvement with a tax protest group. The IRS agents who conducted the search were entitled to qualified immunity regarding this allegation.

Fifth Amendment: Custodial investigation: Deprivation of property.--IRS agents had qualified immunity from a veterinarian's Fifth Amendment claim arising out of his custodial interrogation and the agents' alleged failure to provide his Miranda rights. His right against self-incrimination did not apply in his suit for money damages as it would in a criminal proceeding. Furthermore, he failed to state a claim regarding deprivation of property in connection with documents that were seized pursuant to lawful search warrants.

Miscellaneous constitutional attacks: Bivens-type claim: IRS agents: Scope of authority: Damage to reputation.--To the extent that a veterinarian claimed injury to his reputation based on IRS agents' alleged questioning regarding weapons, he failed to state a Bivens claim since even abusive verbal attacks do not violate the Constitution. Moreover, even if IRS agents improperly carried firearms during the search of his business premises, a Bivens action did not automatically arise from a failure to follow IRS procedures.

[Code Secs. 6103 and 7431 ]

Disclosure of return information: U.S. as proper defendant.--A veterinarian who marketed a book promoting the evasion of taxes failed to state a claim for unauthorized disclosures of confidential information against various IRS agents. The exclusive remedy for unauthorized disclosures is an action against the U.S. , rather than individual IRS agents.
[Code Sec. 7206 ]

Sixth Amendment: Right to counsel: Attachment of right.--A veterinarian's claim that his Sixth Amendment right to counsel was violated by IRS agents when he was allegedly forbidden to have any contact with an attorney during the search of his business premises was dismissed. He was never formally charged with a tax offense and, thus, had no clear right to an attorney.
[Code Sec. 7206 ]

Fraud offenses: Conspiracy to evade taxes: IRS investigation: Search warrants.--Search warrants issued in connection with an IRS investigation of a veterinarian who marketed a book promoting the evasion of taxes were sufficiently specific. The warrants limited the search to documentary evidence related to violations of the Code concerning possible conspiracy to evade taxes. The fact that the warrant failed to name the taxpayer or his wife was not fatal to its validity since it only had to identify the place to be searched and the targets of seizure.
[Code Sec. 7214 ]

Damages: IRS conduct: Search and seizure: No criminal conviction.--A veterinarian who marketed a book promoting the evasion of taxes could not recover damages against the agents in connection with the search of his business and the seizure of documentary evidence under Code Sec. 7214 . No revenue agent had been convicted of any crime in connection with his case.
[Code Sec. 7402 ]

Fourth Amendment: Search and seizure: Qualified immunity: Warrant: Affidavit in support of: Scope of warrant.--An IRS agent had qualified immunity from liability in connection with a taxpayer's Fourth Amendment claims arising out of the search of his business and the seizure of documentary evidence. The agent's affidavit provided ample probable cause to support the issuance of search warrants since it included details of the IRS investigation of the taxpayer and information given by confidential informants and outside sources. The taxpayer's contention that the informants' statements were hearsay was irrelevant; hearsay is permitted to establish probable cause for a warrant. Further, there was no evidence that the agent misrepresented any material fact in obtaining the warrant.

[Code Sec. 7402 ]

District Court: Default judgment: Service of process.--A veterinarian who filed a claim for damages against IRS agents who searched his business and seized documents was not entitled to a default judgment against agents who failed to respond to the complaint. The agents were never served with process.
[Code Sec. 7433 ]

Fourth Amendment: Search and seizure: Scope of search: Pat-down and detention: Conspiracy.--IRS officers who conducted a search of a veterinarian's business did not go beyond the scope of a valid warrant in allegedly "ransacking" the taxpayer's office. That the officers may have seized a large amount of documentation was reasonable and did not rise to the level of a constitutional violation. Furthermore, the agents' brief pat-down and detention of the taxpayer and his wife at the search sites did not give rise to a Fourth Amendment violation since it was reasonable under the circumstances. Additionally, the taxpayer's claim that the agents conspired against him was dismissed as insufficiently specific.

[Code Sec. 7608 ]

Constitutional claims: Bivens-type claim: Search warrant: Authority of CID.--A veterinarian who marketed a book promoting strategies to avoid federal income taxes failed to state a Bivens-type claim against IRS agents for violations of his constitutional rights arising out of the search of his home and business. The reference in Code Sec. 7608 to "Intelligence Division" did not limit the authority of an IRS Criminal Investigation Division (CID) agent to present an affidavit of probable cause for the search warrants.

OPINION

CAHILL, JR., Senior District Judge:

This is a Bivens ¹ action against various known and unknown IRS agents. Plaintiffs allege that the defendants violated various constitutional and statutory rights of the plaintiffs by conducting a search of their personal residence and business premises. Presently before the court are defendants' motion to dismiss, plaintiffs' motion for entry of default, plaintiffs' "Motion for In Camera Review to Determine if Proper Procedures and Safeguards Have Been Followed to Protect Electronically Monitored Evidence", and plaintiffs' "Motion for Contempt and to Seek Enforcement of Court Order."

I. BACKGROUND

A. Factual Allegations

1. Lapina Affidavit

Plaintiff Daniel L. Leveto is a veterinarian who practices out of the Langdon and Leveto Veterinary Hospital at 316 Conneaut Lake Road , Meadville , Pennsylvania . Dr. Leveto was the main target of an undercover operation that began in December of 1994. On May 1, 1996 , IRS special agent Robert A. Lapina, who at that time had nearly nine years' experience in the IRS's Criminal Investigation Division ("IRS-CID"), submitted a 27 page, signed affidavit ("Lapina Affidavit") to Magistrate Judge Susan Paradise Baxter, explaining the history of the IRS-CID's still-ongoing investigation into possible tax evasion by Dr. Leveto. The Lapina Affidavit is attached as Exhibit B to plaintiffs' "Motion to Bring Essential Evidence into Custody of the Court." ² According to the affidavit, Dr. Leveto and his wife, plaintiff Margaret A. Leveto, file joint federal income tax returns. The Levetos were suspected of willfully attempting to evade personal income tax liabilities, in violation of 26 U.S.C. §7201, willfully making materially false income tax returns for the years 1991 through 1994, in violation of 26 U.S.C. §7206(1), and conspiracy to defraud the United States in violation of 18 U.S.C. §371.

Included in the Lapina Affidavit is a description of a book entitled "Tax Free, How the Super Rich Do It", written by Don Turner, also a target of the investigation, who previously served 18 months in prison for income tax related violations. Dr. Leveto stated to a confidential informant that he (Dr. Leveto) was the only individual in the United States who was marketing this publication. He promoted the book to one confidential informant and to the undercover agent, and later sold a copy of this book to the undercover agent. The book advocates the use of "colatos", which stands for (c)ommon (l)aw (t)rust (o)rganizations, and advises that individuals can sell their business to a foreign "colato" and then receive the profits from this business in the form of non-income sources. The foreign "colato" is responsible for filing a 1040 Non-Resident Alien federal income tax return ("1040NR"). Instead of paying tax on the profits, the foreign "colato" can elect to distribute these profits to another foreign "colato", thereby converting income earned in the United States to foreign source income.

The IRS apparently had reason to suspect that Dr. Leveto, possibly with the help of Mr. Turner, was practicing the tax-evasion techniques espoused in this publication. For example, the undercover agent had numerous conversations with Dr. Leveto about how to go about setting up a "foreign colato." These conversations are detailed in the Lapina Affidavit. According to the Lapina Affidavit, Dr. Leveto also explained to a confidential informant that Dr. Leveto became involved in an "association" which could help the confidential informant reduce and/or eliminate paying income taxes. Dr. Leveto explained that once he (Dr. Leveto) joined the "association," he sold his business to either a person or organization, outside the United States . Leveto told the confidential informant that since the business was sold, he receives only wages from this foreign individual/entity when in reality he still controls all of the gross receipts of the veterinarian business. Leveto told the confidential informant that as a result of this, he pays only as much tax as he wants to. On another occasion, Dr. Leveto stated to a confidential informant that he pays only what he considers to be his "fair share" of taxes.

In addition, the IRS learned that sometime in 1993, a certain advertisement was placed in the Wall Street Journal, entitled "Hot New Report Reveals A Unique Way to Legally Pay Zero Taxes and Totally Eliminate Lawsuits." Anyone interested in responding to this advertisement was directed to write to Center Company, Daniel Leveto VMD, GM, 316 Conneaut Lake Road , Meadville , Pennsylvania . This is the same address as Dr. Leveto's veterinarian business. The same advertisement was found in the November 20, 1995 issue of The Spotlight weekly newspaper, with interested parties instructed to write to the same address described supra.

According to the Lapina Affidavit, and consistent with Dr. Leveto's statements to the confidential informant, Leveto had sold the veterinarian business to an entity named Center Company on July 31, 1991 . Center Company filed nonresident alien income tax returns for the years 1991 and 1992, postmarked from the Turks and Caicos Islands, British West Indies . Both the 1991 and 1992 1040NRs reflect that all income was distributed to a beneficiary, resulting in Center Company having no total, adjusted, or taxable income. In 1992, 1993 and 1994 the Levetos reported zero taxable income. The Lapina Affidavit details various expenditures by the Levetos, including extravagant vacations and the purchases of airplanes and cars. Leveto made admissions to the confidential informant and to the undercover agent reflecting the fact that he was involved in nothing more than a "charade or sham." Special agent Lapina stated that Dr. Leveto was "well aware he can dictate whatever taxable income he desires and then disguise the balance of funds he receives as non-income sources utilizing 'debit cards' and a 'line of credit', which he termed as a 'paper tiger.' " Lapina Affidavit at p. 26.

Special agent Lapina explained in his affidavit that it has been his experience that in order to determine an individual's correct taxable income, indirect methods of proof must be utilized, including documentation of assets, liabilities and expenditures. Such financial records are typically kept at business locations and residences. Lapina Aff. ¶5. The confidential informants, one-time friends of the Levetos, were able to pinpoint the likely locations of such financial records. They described the Leveto residence as having a home office with a computer, file cabinet and safe. Mrs. Leveto had explained to one confidential informant that her husband used the home computer for buying and selling commodities. She also explained that Dr. Leveto had a computer at work as well, which he uses for this same activity. During the course of meetings with the undercover agent, Dr. Leveto admitted that he has evidence of assets placed in a nominee name as well as instructions on how "this whole process can be unwound", located in a safe.

As a result of the Lapina Affidavit, the magistrate found that probable cause existed to search plaintiff's home and business for evidence of tax law violations. The searches were authorized and took place the next day, May 2, 1996 . The warrants are attached as Exhibit A to the Second Amended Complaint. A descriptive list of items to be seized appears as Exhibit B to the search warrants, and are attached to the warrants and incorporated therein by reference. The Lapina Affidavit was placed under seal until recently.

2. Second Amended Complaint

The allegations in the complaint are as follows. When Dr. Leveto arrived at his place of business the morning of May 2, 1996 , he was "rushed by several armed people from cars that followed him into the parking lot." Second Amended Complaint at ¶20. Special agent Lapina was armed and wearing a bullet proof vest, and Leveto was patted down. Second Amended Complaint at ¶21. The agents shouted "where are the weapons?" Second Amended Complaint at ¶21. Leveto was escorted into a small room and ordered not to answer the phone or talk to anyone other than the agents. Second Amended Complain at ¶22. Dr. Leveto was held there for one hour. Second Amended Complaint at ¶22.

Dr. Leveto was then ordered to accompany special agents Lapina, Adams and two other unnamed agents to his home. Upon their arrival, Mrs. Leveto, wearing only her nightgown, was also patted down. Second Amended Complaint at ¶23. Under the supervision of special agent Hines, a second set of agents remained at the Leveto residence for six hours and seized thousands of documents, computer discs, personal mail, and other personal records. Second Amended Complaint at ¶24.

Dr. Leveto was ordered back to the veterinary hospital and held there for six hours in one room, with escorted visits to the restroom. Second Amended Complaint at ¶25. Dr. Leveto feared for his life and did not challenge the heavily armed agents. Second Amended Complaint at ¶26. During that time, Dr. Leveto was "interrogated" by special agents Lapina and Adams, without a Miranda warning, and felt obliged to cooperate because he feared for his life as a result of the fact that the agents were armed and were "ransacking" the business offices. Second Amended Complaint at ¶27. Dr. Leveto was not permitted to call an attorney. Second Amended Complaint at ¶28.

Dr. Leveto further alleges that his fellow employees were segregated, questioned, and sent home, and that armed agents turned away clients in the parking lot, claiming the facility was closed until further notice. Second Amended Complaint at ¶29, 30. The agents loaded trucks with the records of five companies, personal reading material, computer software, research related to commodity trading, and also computer files relating to the hospital, over 3,000 client medical and financial records. Second Amended Complaint at ¶33, 34. Special agent Judy Graham made an inventory of the items seized, which has been attached as Exhibit J to the Second Amended Complaint. No weapons were found on the premises. Second Amended Complaint at ¶36.

The application for the search warrant and the affidavit of probable cause were sealed by order of court. Until they were unsealed two years later, the Levetos allege, Dr. Leveto had no idea of the crime he was suspected of committing, other than a violation of 18 U.S.C. §371 (conspiracy to impair, impede or obstruct the functions of the IRS). This is the statutory violation cited on the search warrant. The Levetos admit that they were shown a copy of the warrants prior to the searches, and that they voluntarily consented to further searches of areas outside the scope of the search warrant. In light of the suddenness of the searches, however, they were confused by what was happening.

The Levetos filed a motion for return of the seized property pursuant to Fed.R.Crim.P. 41(e). After a hearing, at which the IRS refused to offer testimony or evidence because the investigation was--and for all we know, still is--ongoing, Magistrate Judge Baxter ordered that all items seized in the two searches be returned. This order was entered on August 4, 1998 .

B. The Parties and Proceedings

On April 29, 1998 , plaintiffs, Daniel L. Leveto and Margaret A. Leveto, filed a complaint claiming violations of their constitutional rights Which allegedly occurred during the procurement and execution of the search warrants. The defendants at that time included special agents from the Internal Revenue Service Robert A. Lapina, Richard W. Adams, Judy A. Graham, Suzi Hines, "Joe Rivera" and "10 Unknown IRS Agents." On May 14, 1998 , pursuant to court order, plaintiffs filed a twenty-nine count amended complaint against the same defendants, this time deleting the amount of unliquidated damages claimed, as is required by local rule.

Defendants Lapina, Adams, Graham and Hines waived service of a summons, and they subsequently filed a motion to dismiss plaintiffs' amended complaint. According to counsel for defendants, plaintiffs failed to effectuate service of process on any of the other defendants. Neither "Joe Rivera" nor the ten unnamed defendants responded to plaintiffs' amended complaint.

On October 8, 1998 , Judge McLaughlin of this court heard oral argument concerning the various motions then pending. The transcript of that argument ("Oral Arg. Tr.") (Doc. 43) is part of the record and has been reviewed by this member of the court. Because the affidavit in support of probable cause had only been recently unsealed, Judge McLaughlin granted leave to allow plaintiffs to file a Second Amended Complaint, which they did on October 26, 1998 . The Second Amended Complaint has forty-nine counts and was drafted with the benefit of legal counsel.

In addition, to help clarify the names of the individuals who fit within the category of "10 Unknown IRS Agents," Judge McLaughlin ordered defendants' counsel to provide plaintiffs' counsel with the names of all of the IRS special agents who participated in the search of plaintiffs' home and business. At oral argument, defendants' counsel represented to the court that the unnamed defendants would not attempt to "duck service," and, as agreed, defense counsel later provided the names. Plaintiffs moved to amend the Second Amended Complaint's caption and allegations pertaining to the unnamed defendants to include said individuals. We granted that motion on November 5, 1998 (Doc. 48). However, plaintiffs have not yet served summons or complaint on any of these individuals.

The counts of the Second Amended Complaint will be discussed in more detail infra, but generally can be grouped as follows. Counts 1 through 8, 48 and 49 allege violations of the First Amendment. Counts 9 through 28, 45 and 49 allege violations of the Fourth Amendment. Counts 29 through 35, 43, 44, 48 and 49 allege denial of due process in violation of the Fifth Amendment. Counts 36 through 39 allege violations of the Sixth Amendment's guarantee of right to counsel. Counts 40 through 42 allege violations of the Thirteenth Amendment. There are also various statutory claims sprinkled throughout the Second Amended Complaint.

Defendants then filed the now-pending motion to dismiss the Second Amended Complaint on November 12, 1998 . It is their position that the legal arguments contained therein apply equally to all named and unnamed defendants, whether they have been served or not. On November 13, 1998 , attorney Neil Price withdrew as counsel to plaintiffs. On November 18, 1998 , Judge McLaughlin entered an order of recusal and the case was transferred to the undersigned member of this court.

Plaintiffs, appearing pro se, subsequently filed a brief in opposition to the motion to dismiss the Second Amended Complaint, as well as a brief in support of their "motion for in camera review."

On March 22, 1999 , this member of the court held a status conference on this and other consolidated cases, ³ at which time we took under advisement all pending motions. We ordered the government to turn over certain documents responsive to certain pending FOIA requests. However, we heard no substantive argument at that time, although the transcript of that conference is now part of the record.

On July 12, 1999 , attorney William G. McConnell entered his appearance on behalf of the plaintiffs. In that capacity he filed the "Motion for Contempt and to Seek Enforcement of Court Order" with respect to one FOIA request.

II. DISCUSSION

A. Standard for Motions to Dismiss

On a Rule 12(b)(6) motion, the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the nonmoving party. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). The question is whether the plaintiff can prove any set of facts consistent with his allegations that will entitle him to relief, not whether he will ultimately prevail. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept legal or unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegation. See Miree v. DeKalb County , Ga. , 433 U.S. 25, 27 n. 2 (1977). Moreover, the claimant must set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist. See Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Matters outside the pleadings should not be considered. This includes "any written or oral evidence in support of or in opposition to the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings." Charles A. Wright, Arthur R. Miller, Federal Practice and Procedure §1366 (West 1990).

"It is well established that, even if a party does not make a formal motion to dismiss, the court may, sua sponte, dismiss the complaint where the inadequacy of the complaint is clear." Slater v. Skyhawk Transp., Inc., 187 F.R.D. 185, 202 (D.N.J. 1999), quoting Michaels v. New Jersey , 955 F.Supp. 315, 331 (D.N.J. 1996). A court may on its own initiative enter an order dismissing the action provided that the complaint affords a sufficient basis for the court's action. Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980).

The United States Court of Appeals for the Third Circuit has imposed a heightened pleading standard in civil rights actions; complaints against government officials in their personal capacity must "contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs." Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988), cert. denied, 489 U.S. 1065 (1989). To satisfy this standard, a plaintiff must "allege the specific conduct violating the plaintiff's rights, the time and place of that conduct, and the identity of the responsible officials." Id. In a Bivens action against multiple federal defendants, "the plaintiff must plead the personal involvement of each defendant with specificity and with sufficient facts to overcome a likely defense of immunity." See Baise v. Kaplin, 852 F.Supp. 268, 287 (D.N.J. 1994).

B. Authority of Agent Lapina

At the outset, plaintiffs argue that special agent Lapina lacked authority to present the application and affidavit of probable cause, and thus, the searches and seizures were void ab initio. See Counts 7, 8, 23, 24, 34, 35, 38, 39, 41, and 42. These allegations border on the frivolous. Federal Rule of Criminal Procedure 41(a) states that a federal magistrate may issue a search warrant "[u]pon the request of a federal law enforcement officer or an attorney for the government." A "federal law enforcement officer" is any government agent who is engaged in the enforcement of the criminal laws and is within the category of officers authorized by the Attorney General to request the issuance of a search warrant. Fed.R.Crim.P. 41(h); 28 C.F.R. §60.2. There is no doubt that special agent Lapina's primary responsibilities include the investigation of alleged criminal violations under federal tax law, and that the Internal Revenue Code grants him the authority to execute search warrants and to seize property. 26 U.S.C. §7608(b)(2)(A).

Plaintiffs are under the mistaken impression that because §7608 of the Internal Revenue Code uses the term "Intelligence Division," rather than Criminal Investigation Division, special agent Lapina lacked authority to execute the search warrants. "Intelligence Division" is the former name of the Criminal Investigation Division. See U.S. v. Amerada Hess Corp. [80-1 USTC ¶9160], 619 F.2d 980, 982 (3d Cir. 1980); U.S. v. Garden State Nat'l Bank [79-2 USTC ¶9632], 607 F.2d 61, 65 n. 3 (3d Cir. 1979); U.S. v. Morgan [85-1 USTC ¶9397], 761 F.2d 1009, 1011 (4th Cir. 1985); U.S. v. Silvestain [82-1 USTC ¶9159], 668 F.2d 1161, 1163 (10th Cir. 1982); U.S. v. Miller [81-2 USTC ¶9749], 660 F.2d 563, 565 n. 2 (5th Cir. 1981); U.S. v. Jones [80-2 USTC ¶9804], 630 F.2d 1073, 1081 n. 12 (5th Cir. 1980); U.S. v. Equitable Trust Co. [79-2 USTC ¶9653], 611 F.2d 492, 495 n. 1 (4th Cir. 1979).

Therefore, Counts 7, 8, 23, 24, 34, 35, 38, 39, 41 and 42 are wrongly premised on the notion that special agent Lapina knew or should have known that he lacked authority to present an application and affidavit of probable cause, and those portions of those counts will be stricken on the grounds that they fail to state a claim upon which relief can be granted.

C. Bivens and Qualified Immunity

Under limited circumstances, a federal official may be held liable for the violation of a person's constitutional rights while acting in an official capacity. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), the Supreme Court held that a plaintiff could recover money damages for Fourth Amendment violations committed by federal agents. In order to state a Bivens claim, the plaintiff must allege a specific deprivation of constitutionally protected rights through specific allegations of fact regarding defendants' conduct. Baker v. McCollan, 443 U.S. 137, 140 (1979). Subsequently, courts have expanded the Bivens remedy to encompass violations of other constitutional provisions. The Supreme Court, however, repeatedly has warned that federal courts should exhibit caution in "extending Bivens remedies into new contexts." F.D.I.C. v. Meyer, 510 U.S. 471, 484 (1994); Schweiker v. Chilicky, 487 U.S. 412, 421 (1988). The Supreme Court has held that plaintiffs must do much more than simply allege that a provision of the Bill of Rights has been violated. For instance, simply alleging a violation of the Due Process Clause is not enough.

[O]ur cases establish that the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . [I]n the light of preexisting law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635 (1987), citing Mitchell v. Forsyth, 472 U.S. 511, 535 n. 12 (1985) and Malley v. Briggs, 475 U.S. 335, 344-45 (1986).

Defendants argue that they are protected from liability under the doctrine of qualified immunity. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Anderson, 483 U.S. at 638. Under Harlow , this determination requires an objective analysis. Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989). Plaintiffs have the burden of showing a prima facie case of defendants' knowledge of impropriety, actual or constructive. Davis v. Scherer, 468 U.S. 183, 191 (1984). The defense of qualified immunity is a recognition of the fact that subjecting public officials to personal liability for their discretionary actions results in the distraction of those officials from their public duties, inhibits their discretionary actions, and, quite possibly, deters qualified people from accepting public service. Harlow, 457 U.S. at 815.

The case law instructs that, in analyzing the defendants' claim of qualified immunity, we must first make a threshold determination of whether the constitutional rights asserted by the plaintiff were "clearly established" at the time the defendant officials acted, and whether the plaintiffs have asserted a violation of a constitutional right at all. Giuffre v. Bissell, 31 F.3d 1241, 1255 (3d Cir. 1994). We must then further inquire whether a reasonable person in the official's position at the relevant time could have believed, in light of what was in the decided case law, that his conduct would be unlawful. Good v. Dauphin County Social Servs. for Children and Youth, 891 F.2d 1087, 1092 (3d Cir. 1989). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley, 475 U.S. at 341.

One of the purposes of the qualified immunity standard is to protect public officials from the "broad-ranging discovery that can be peculiarly disruptive of effective government." Anderson, 483 U.S. at 646 n. 6. For this reason, "qualified immunity should be resolved at the earliest possible stage of the litigation." Id. "Unless the plaintiff's allegations state a claim for violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before commencement of discovery." Mitchell, 472 U.S. at 526.

1. The Fourth Amendment

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.

U.S. Const. Amend. IV.

The plaintiffs allege that their Fourth Amendment rights were violated for numerous reasons, including perceived defects in the warrants, the nature and reliability of the information contained in the Lapina Affidavit, the lack of probable cause for their issuance, the breadth of the warrants, the scope of the search, and the fact that they were patted down.

At the outset, we note that we are in an unusual posture: this case challenges the constitutionality of a search and seizure, yet the Levetos have not been indicted. Should criminal charges be brought, they will be entitled to a suppression hearing on many of the issues infra. We do not intend this decision to have any preclusive effect on any subsequent criminal matters involving the same facts and parties.

a. Probable Cause

A valid search warrant may issue only upon the showing to the issuing authority that there is probable cause for the search. To determine whether probable cause exists, the magistrate is required to make a "practical, common sense decision" whether, given the circumstances, there is "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). The decision is based upon the totality of the circumstances, and doubtful cases are to be resolved in favor of upholding the warrant. Id. at 237; see United States v. Sleet, 54 F.3d 303 (7th Cir. 1995). "[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232. A deciding judge deals with probabilities, not technicalities, when deciding whether to issue a warrant. Id. A sufficient nexus between the items to be seized and the place to be searched may be established by direct evidence or by inferences. United States v. McKinney , 758 F.2d 1036, 1043 (5th Cir. 1985); United States v. Malin, 908 F.2d 163, 165 (7th Cir. 1990). Even if a reviewing court would not have found probable cause for issuance of a search warrant, it must nevertheless uphold the warrant so long as the issuing magistrate's determination was made consistent with the minimal substantial basis standard. United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993), cert. denied, 510 U.S. 1177 (1994).

The case of United States v. Williams, 124 F.3d 411, 420 (3d Cir. 1997), cert. denied, 522 U.S. 1051 (1998), instructs that the supporting affidavit to a search warrant application must be read in its entirety and in a common sense and nontechnical manner. See Conley, 4 F.3d at 1206. The affidavit need not contain direct evidence that proof of wrongdoing would be present at the premises. Id. at 1207. "Instead, probable cause can be, and often is, inferred by 'considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide [the] property.' " Id., quoting United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993). The focus should be on what the affidavit includes, rather than on what it does not include. Id. at 1208. Even where a misrepresentation or an omission is included in an affidavit, the affidavit may nevertheless support the valid warrant if information contained in the affidavit, independent of the defective portion, supports a probable cause finding. United States v. Frost, 999 F.2d 737, 742-43 (3d Cir. 1993), cert. denied, 510 U.S. 1001 (1993). This is true even where the misrepresentation or omission is made intentionally or knowingly, or made with reckless disregard for the truth. Id.

We find that, as a matter of law, the Lapina Affidavit, when read in its entirety, provides ample probable cause to support