concurring: I concur in the result reached by the majority only because of the facts here present. The special agent interviewed petitioner on March 26,1968, March 27,1968, April 26, 1968, and on April 29, 1968, before giving him the warning required by respondent’s procedures published in I.R.S. News Release No. 897 (Oct. 3, 1967). These procedures, designed to safeguard a taxpayer’s fifth amendment rights, require a special agent on initially contacting a taxpayer to identify his function of investigating the possibility of criminal tax fraud. If “preliminary inquiries” do not resolve the potential criminal aspects, the special agent must advise the taxpayer of his rights to remain silent and to retain counsel.
The court in United States v. Brod, 324 F. Supp. 800 (S.D. Tex. 1971), concluded that the warning specified in respondent’s procedures should have been given at the end of the March 26, 1968, interview, and that evidence acquired in the three subsequent interviews in disregard of respondent’s published procedures violated petitioner’s right to due process of law under the fifth amendment and should be suppressed. See United States v. Leahey, 434 F. 2d 7 (1st Cir. 1970); United States v. Heffner, 420 F. 2d 809 (4th Cir. 1970).
The three subsequent interviews, conducted on March 27, 1968, April 26, 1968, and April 29, 1968 (unlike the 3-hour interview on March 26 delving deeply into petitioner’s business affairs) were of relatively short duration. Those interviews were directed at specific points that are not related to the relatively routine interrogatories respondent asked in this case, which appear to simply parallel those respondent would routinely ask in most civil fraud cases. The disputed questions, to the extent they are derived from any evidence gathered by the agents, relate to materials gathered at or prior to the March 26, 1968, interview, that is, prior to the time that United States v. Brod, supra, found that the warning was required under respondent’s procedures. These findings in Brod are binding upon us in these proceedings. Estate of Millard D. Hill, 59 T.C. 846, 851 (1973). For these reasons, I concur in the result.
However, the majority opinion appears to hold that evidence (or the fruits of such evidence) acquired in clear violation of a taxpayer’s fifth amendment rights can be admitted in a civil fraud case, as long as it is reliable, even though the evidence is not independently obtainable by respondent. To the extent the majority opinion so holds, I am in disagreement with both the reasoning and conclusion.
Evidence actually acquired in violation of constitutional rights, whether those guaranteed by the fourth amendment or the fifth amendment, is subject to the exclusionary rule if the benefits of the incremental deterrence to unconstitutional police behavior outweigh the disadvantages attending exclusion. Michigan v. Tucker, 417 U.S. 433, 446, 447 (1974); United States v. Calandra, 414 U.S. 338, 349, 351 (1974).1 The Commissioner of Internal Revenue recently testified before Congress that the Service has “a gold mine of information in our tax system. We have more information about more people than any other agency in this country.”2 They also have very broad investigative powers. Special agents, being among the best educated and most highly trained investigative officers in the world, are fully capable of utilizing these tremendous resources. Additionally, these officers do not perform their duties in anything approaching a tense atmosphere engendering fear for their safety, or requiring split second decisions under circumstances where anyone’s physical safety is threatened. In short, if ever there existed a situation where investigative officers should be held to the highest standards, it is the instance before the Court.
Therefore, I would exclude evidence acquired in violation of a taxpayer’s fifth amendment rights in any civil fraud proceeding unless the Government can show an independent source for the evidence clearly demonstrating that they are not seeking to benefit from unconstitutional police behavior. The Government, having lost the fruits of their unconstitutional behavior in the criminal proceeding, should not have its disappointment diminished by winning a consolation prize in the form of a 50-percent civil fraud penalty in this Court. Certainly the deterrent to police behavior underlying the policy of exclusion in the criminal trial should not be substantially reduced by providing a high yield on the unconstitutionally acquired evidence in the civil trial. Cf. Tank Truck Rentals, Inc. v. Commissioner, 356 U.S. 30 (1958).
Tannenwald, Featherston, and Sterrett, JJ, agree with this concurring opinion.Certainly the fact that the procedures here employed might have been constitutional “if no. criminal case had been initiated against petitioner” begs the question; a criminal investigation did occur, petitioner’s fifth amendment rights were violated, and the “same evidence,” if not independently obtained by respondent, should be excluded. To the extent the majority opinion is predicated on the supposition of nonexistent facts (i.e., no criminal investigation, no fifth amendment violation) it is clearly in error. In this connection, it is not clear what ruling, if any, the Court is making with regard to petitioner’s motion to suppress evidence obtained, at the Mar. 27, 1968, Apr. 26, 1968, and Apr. 29, 1968, interviews with petitioner. The evidence covered by this motion includes an inventory of petitioner’s safety deposit box taken by petitioner and the special agent on Mar. 28,1968, and is clearly covered by the District Court’s suppression order. For the reasons outlined above, I would order this evidence suppressed.
Staff of the Joint Comm, on Internal Revenue Taxation, 94th Cong., 1st Sess., • Confidentiality of Tax Returns 3 (Comm. Print 1975).