Many courts have held that the Privacy Act does not permit criminal defendants to seek the exclusion of evidence. See, e.g., United States v. Bressler, 772 F.2d 287, 293 (7th Cir. 1985); United States v. Goree, 47 Fed.Appx. 706, 711-12 (6th Cir. 2002); Word v. United States, 604 F.2d 1127, 1129 (8th Cir. 1979); United States v. Revland, No. 5:06-HC-2212-BR-JG, 2011 WL 7665381, at *1 (E.D. N.C. Nov. 30, 2011); United States v. Gillotti, 822 F.Supp. 984, 989 (W.D.N.Y. 1993); cf. McLean v. Hernandez, 848 Fed.Appx. 727, 728 (9th Cir. 2021) (explaining in a Bivens action that the pro se prisoner plaintiff's “remedy for an alleged violation of the Privacy Act of 1974 was damages, not exclusion of evidence”). Ninth Circuit precedent thus generally “prohibits judicial creation of a remedy for a statutory violation when the statute itself already articulates the remedy.” Smith, 196 F.3d at 1040 (declining to suppress evidence for an alleged violation of the federal bribery statute); see Schultz v. United States, 594 F.3d 1120, 1123 (9th Cir. 2010)
Other courts to consider the issue have held that the Privacy Act's remedies are exclusive. United States v. Bressler, 772 F.2d 287, 293 (7th Cir. 1985) ("even if the defendant had made a sustainable argument, the proper remedy is a civil action under Section 552a(g)(1) of the Privacy Act, not dismissal of the indictment."); United States v. Gillotti, 822 F.Supp 984, 989 (W.D.N.Y. 1993) (noting that appropriate relief for a violation of § 552a(e)(7) is found in the statute, and noting the lack of judicial authority to support the argument that violation of the Privacy Act can provide any form of relief in a federal criminal prosecution). As the district court stated in Cooper, the Supreme Court has held it proper for courts to exercise their supervisory power to suppress evidence obtained through non- constitutional illegality in the past, but it has recently declined to do so where the defendant's constitutional rights have not been violated.
The first issue is whether Morse received due notice that summonses were being served to third parties. Where the record shows the taxpayer was served with such notice by certified mail, there is sufficient notice and the requirements of § 7602(c) are met. See United States v. Gillotti, 822 F.Supp. 984, 987 (W.D.N.Y. 1993). In his motion papers, Morse claims he did not receive notice.
Nonetheless, courts outside this circuit have suggested that the Privacy Act's remedies are exclusive. See United States v Bressler, 772 F2d 287, 293 (7th Cir 1985); United States v Gillotti, 822 F Supp 984, 989 (WDNY 1993). Although these decisions are persuasive authorities, the court declines the government's invitation simply to follow those courts' lead without more.