dissenting: I, too, cherish the right of privacy, yet, when the reasons for and the reasons against are weighed, I am convinced that we are not required to extend the “exclusionary rule” to civil tax cases, nor is it wise for us to do so. I must dissent.
In its carefully reasoned opinion, the majority rests its conclusion in part on the classical reason for the exclusionary rule, that is, evidence is excluded in order to deter violations of the fourth amendment. Yet, serious doubts are now being expressed as to whether the application of the exclusionary rule in criminal cases does in fact accomplish that objective. Mr. Chief Justice Burger has said:
I do not question the need for some remedy to give meaning and teeth to the constitutional guarantees against unlawful conduct by government officials. * * * But the hope that this objective could he accomplished by the exclusion of reliable evidence from criminal trials was hardly more than a wistful dream. Although I would hesitate to abandon it until some meaningful substitute is developed, the history of the Suppression Doctrine demonstrates that it is both conceptually sterile and practically ineffective in accomplishing its stated objective. * * * [Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 415 (1971), Burger, C.J., dissenting.]
He also pointed out that many others who have studied the operation of the rule have judged it to be ineffective. One of the most extensive of those studies was conducted by Mr. Dallin H. Oaks, who summarized his findings as follows:
As a device for directly deterring illegal searches and seizures by the police, the exclusionary rule is a failure. There is no reason to expect the rule to have any direct effect on the overwhelming majority of police conduct that is not meant to result in prosecutions, and there is hardly any evidence that the rule exerts any deterrent effect on the small fraction of law enforcement activity that is aimed at prosecution. What is known about the deterrent effect of sanctions suggests that the exclusionary rule operates under conditions that are extremely unfavorable for deterring the police. The harshest criticism of the rule is that it is ineffective. It is the sole means of enforcing the essential guarantees of freedom from unreasonable arrests and searches and seizures by law enforcement officers, and it is a failure in that vital task.
The use of the exclusionary rule imposes excessive costs on the criminal justice system. It provides no recompense for the innocent and it frees the guilty. It creates the occasion and incentive for large-scale lying by law enforcement officers. It diverts the focus of the criminal prosecution from the guilt or innocence of the defendant to a trial of the police. Only a system with limitless patience with irrationality could tolerate the fact that where there has been one wrong, the defendant’s, he will be punished, but where there have been two wrongs, the defendant’s and the officer’s, both will go free. This would not be an excessive cost for an effective remedy against police misconduct, but it is a prohibitive price to pay for an illusory one. * * * [Oaks, “Studying the Exclusionary Rule in Search and Seizure.” U. Chi. L. Rev. 755-756 (1970).]
It is not for us to decide whether the exclusionary rule should continue to be applied in criminal cases, or whether that rule should be replaced by some other device for the protection of the right of privacy.1 However, we do have to decide whether the exclusionary rule should be extended and applied in a new class of cases — civil tax cases. Grave doubts have been presented as to the efficacy of the exclusionary rule, and surely we are not required to extend a rule of such doubtful utility. When others are seeking to restrict the rule and to find an alternative that better serves the public interests, we should not compound the present difficulties by undertaking to apply the rule to additional cases.
There is additional reason for doubting the deterrent effect of applying the exclusionary rule in this case. In Pizzarello v. United States, 408 F. 2d 579 (C.A. 2, 1969), the exclusionary rule was applied in a proceeding to enjoin a tax assessment, but in that case, the raid was conducted by Treasury agents. However, in this case, the raid was not conducted by the Internal Revenue Service. The intelligence agent who made the investigation learned of the raid by reading about it in a newspaper several days after it had occurred, and he had nothing to do with arranging it. Moreover, there is no reason whatsoever to believe that those officers who did conduct the raid were seeking-information relating to the tax liability of Mr. Suarez. Even if the application of the exclusionary rule might have some effect when a raid is conducted by the Internal Revenue Service or when its agents participate in the raid, its application could have no deterrent effect when the raid is conducted by other officers without any purpose of securing tax information.2 Applying the exclusionary rule will merely bestow upon Mr. Suarez the windfall of possibly relieving him from the tax liability on the income that he earned as a result of his allegedly illegal activities.
The majority also relies upon the concept that evidence secured in violation of the fourth amendment should not be admissible in any court proceeding for any purpose. To admit such evidence, the Court believes, would corrupt the judicial process. It is sometimes said that such evidence is “tainted,” and Mr. Justice Brandéis warned about the “anarchy” that would follow from unrestrained police conduct. The use of such dramatic phrases tends to obscure the reasoning process. There is nothing inherently wrong with the evidence seized by the officers, and the courts, for them to function properly, ordinarily welcome and encourage the presentation of all relevant and reliable evidence. For that reason, the law generally favors the admission of all such evidence, unless there is some compelling reason for its exclusion. In considering the possible corruption of the judicial process, one should also bear in mind that the courts are being used as the “tool” of those whose hands are unclean — the exclusionary rule helps only those persons who have something to hide. Its application relieves them of their responsibility to account to society for their conduct. No one wishes to condone unrestrained police conduct, but in considering whether to extend the exclusionary rule to civil tax cases, one must weigh the possible danger of admitting the evidence in such proceedings against the harm to society that may occur if the evidence is excluded.
In our self-assessment tax system, all people are required to report their income and to pay the tax due thereon, however painful that process may be. Yet, how are the people going to react if they learn that those who are engaged in illegal activities are excused from paying a tax on their income because a court determines that the police acted improperly in securing evidence? Although the exclusionary rule has been applied in some civil proceedings, the consequences of doing so in tax cases will be altogether different. Applying the rule in a case'involving an alleged violation of a housing code or involving a dispute over customs duties is not going to have any widespread effect upon the compliance with those laws, but the application of the rule in civil tax cases raises the prospect of seriously undermining the practice of voluntary compliance with the tax laws.
In several cases, the Supreme Court has held that a grand jury must be free to consider whatever evidence comes to its attention; it must not to be shackled in its operations by the nice rules of evidence. United States v. Blue, 384 U.S. 251 (1966); Lawn v. United States, 355 U.S. 339 (1958); Costello v. United States, 350 U.S. 359 (1956). In Costello, the Court said at page 362:
The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Eounders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. G-rand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satisfactory. * * * 3
In addition, there are other situations in which the courts have recognized that the advantages of using evidence, however obtained, outweighed any reasons for excluding it. In United States v. Shipani, 435 F. 2d 26 (C.A. 2, 1970), evidence obtained by wiretapping could be considered for purposes of sentencing, and in United States ex rel. Sperling v. Fitzpatrick, 426 F. 2d 1161 (C.A. 2, 1970), similar evidence was considered in a parole revocation proceeding.
The role of the Commissioner is somewhat similar to that of the grand jury.4 He has the grave responsibility of administering this vast tax system, including the responsibility of initiating proceedings to collect the tax from anyone who does not voluntarily disclose and pay his share. If the Commissioner learns, from reliable information, that a person has not complied with the tax laws, he should investigate and take the appropriate steps to see that such person does comply with the law. When the agent first learned of the raid from the newspaper, should he have closed his eyes to the possibility that Mr. Suarez may not have been reporting his income from his allegedly illegal activities ? Perhaps there were other ways in which Internal Revenue could have made an investigation of the possibility, but it was offered direct evidence of such activities. It seems to me that the Commissioner and his staff are not required to close their eyes to indications of possible unreported income; indeed, in my opinion, it is their responsibility to accept that evidence and to make appropriate use of it in the performance of their official duties.
In deciding not to apply the exclusionary rule to proceedings before the grand jury, the Supreme Court recognized that if the rule was made applicable in such proceedings, it would delay them and result in increased litigation. Costello v. United States, supra at 363. The Court’s opinion in the case before us illustrates some of the difficulties that occur when we undertake to exclude evidence obtained by an allegedly illegal search. When a taxpayer seeks to invoke the rule, it then becomes necessary to determine whether there has been an illegal search. In this case, the Court concludes that the police were not excused from announcing their purpose before breaking down the door and entering because of their claimed fear of possible harm to their colleague, Barbara. It seems to me that such a conclusion totally ignores the reality of human emotions. It is one thing for us, sitting in the calm of our chambers, to conclude that the police did not act as a result of fear of harm to Barbara; if we had been on the scene, we might well have acted as the police did. Despite the fact that Barbara was experienced and trained, they knew that she was somewhere in the clinic with a man who might become desperate, and he might have others to assist him in overpowering Barbara. Although the police knocked several times before breaking down the door, the fact that they could not enter may have increased their concern because they could not reach Barbara and provide her with any necessaiy assistance.
The majority also concludes that the police were at fault in failing to announce their purpose when they knocked. That conclusion also seems to me to ignore reality. When a person is engaged in the illegal activities allegedly performed by Mr. Suarez, and the police knock at his door, it would not require much imagination on his part to know why they were there; he could guess the answer with virtual certainty. To say that under those circumstances, the police should have stated their purpose, in my opinion, insists upon a technical compliance with the law which is not at all necessary to protect one’s constitutional rights.
In conclusion, I suggest that whatever may be the justification for applying the exclusionary rule in criminal cases, there is sufficient doubt about its efficacy so that it should not now be extended to civil tax cases. Moreover, if it is extended at all to such cases, it should not be applied with respect to the information on which a notice of deficiency is based, and it should only be done when the Internal Revenue Service is involved in a violation of the fourth amendment. Finally, if the rule is applied to civil tax cases, it should be done in the manner suggested by the American Law Institute by excluding the evidence only when there is a finding that the violation was substantial. See A.L.I. Model Code of Pre-Arraignment Procedures, sec. SS 290.2(2) (Proposed Official Draft No. 1,1972). Such an approach enables the courts to protect adequately an individual’s constitutional rights, without unnecessarily interfering with the operations of the Government and its officials.
Baum, /., agrees with this dissent.As an alternative to the exclusionary rule, the present Chief Justice has suggested a procedure for awarding damages to anyone who has been the victim of an illegal search and seizure. Such a Temedy, he suggested, would be more effective because It could be Invoked with respect to any illegal search.
Such comment is not inconsistent with Elkins v. United States, 364 U.S. 206 (1960), in which it was held that evidence secured by an unlawful search by State officers was not admissible in a Federal case. That decision recognized that very often evidence may be indicative of a violation of both State and Federal laws, thus, in criminal cases, it matters not who conducted the unlawful search. I am not suggesting that any distinction should be based upon who conducts the raid, but I am suggesting that only when officers, be they officers of the State or of the Federal Government, are seeking tax information, will they be restrained by the prospect of the application of the exclusionary rule In civil tax cases.
In its recent decision in Gelbard v. United States, 408 U.S. 41 (1972), the Supreme Court again approved its holding in Costello v. United States, 350 U.S. 359 (1956), although it held that a witness could not be compelled to appear and testify before a grand jury with respect to information secured by an illegal wiretap.
I am suggesting merely that the roles of the Commissioner and the grand jury are similar In that they both are expected to consider all available information in order to determine what actions should be initiated. I recognize that in a criminal case, the prosecutor still has the burden of establishing the defendant’s guilt by admissible evidence; thus, the grand jury’s consideration of evidence improperly obtained may not be decisive. However, the exclusionary rule has also been applied in the sentencing and parole revocation proceedings, even though the evidence secured by an improper search may be decisive in those situations.